Brett Steven Amerson v. State of Alabama (Appeal from Cullman Circuit Court: CC-19-526)

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
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CR-2023-0475
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Brett Steven Amerson

v.

State of Alabama

Appeal from Cullman Circuit Court
(CC-19-526)

On Return to Remand

WINDOM, Presiding Judge.

Brett Steven Amerson appeals from his convictions for reckless

murder, manslaughter, leaving the scene of an accident with injury,

driving under the influence, driving while his license was suspended or

revoked, and failure to yield right-of-way. See §§ 13A-6-2(a)(2), 13A-6-
CR-2023-0475

3(a)(1), 32-10-1, 32-5A-191, 32-6-19, and 32-5A-111, Ala. Code 1975.

Amerson was sentenced as a habitual felony offender to 75 years in prison

for the murder conviction, to 30 years in prison for the manslaughter

conviction, to 15 years in prison for the conviction for leaving the scene

of an accident, to 10 years in prison for the conviction for driving under

the influence, to 180 days in jail for the conviction for driving while his

license was revoked or suspended, and to 180 days in jail for his

conviction for failure to yield right-of-way. The circuit court ordered that

his sentences be served consecutively. 1

Shortly after 5 p.m. on December 18, 2018, Bradley Ray Patterson

was traveling on his motorcycle on Alabama State Route 157 when he

1 On original submission, Amerson argued that he was denied his

right to counsel during a critical stage of the proceeding – his motion for
a new trial. Citing our Supreme Court's holding in Ex parte Pritchett,
117 So. 3d 356 (Ala. 2012), this Court reversed the circuit court's order
denying Amerson's motion for a new trial and remanded the case to the
circuit court for that court to conduct a hearing on Amerson's motion.
This Court directed the circuit court to ensure that Amerson would be
represented by counsel unless the circuit court determined that Amerson
had knowingly, intelligently, and voluntarily waived his right to counsel.
On remand, the circuit court conducted a hearing on Amerson's motion
for a new trial, at which Amerson was represented by counsel. At the
conclusion of the hearing, the circuit court denied Amerson's motion for
a new trial.

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encountered a red traffic light. Patterson stopped at the traffic light.

When the traffic light turned green, Patterson proceeded through the

intersection. At the same time, a large white box truck driven by

Amerson was traveling from the opposite direction. Amerson turned at

the intersection in front of Patterson, and Patterson's motorcycle collided

with Amerson's truck. Patterson was hurled from the motorcycle onto

the ground. Amerson proceeded up a ramp to the interstate. Patterson

died from his injuries shortly after being transported from the scene.

Witnesses relayed the circumstances of the collision to responding

law-enforcement officers and provided a description of the box truck. A

short time later, Sgt. Daniel Cummings with the Cullman Sheriff's Office

located the box truck parked at a business. The truck appeared to have

paint markings on it that matched the color of Patterson's motorcycle. As

Sgt. Cummings circled the building, Amerson left the parking lot in the

truck. Sgt. Cummings followed the truck and around 6:10 p.m. initiated

a traffic stop. Amerson smelled of alcohol and appeared to be highly

intoxicated. An empty vodka bottle was inside Amerson's truck.

Amerson admitted to Sgt. Cummings that he was intoxicated and asked

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Sgt. Cummings what had happened to the person on the motorcycle that

he had hit. Amerson was taken into custody.

When questioned by law-enforcement officers at the police station,

Amerson initially told the officers that he had struck a deer. A search

warrant was obtained to draw Amerson's blood and urine, and those

fluids were collected from Amerson at 10:10 p.m. the night of the collision.

Amerson's blood and urine were sent to the Alabama Department of

Forensic Sciences, where the alcohol content was analyzed. Testing

determined the alcohol content of Amerson's blood to be .244 grams per

100 milliliters, or more than 3 times the legal limit. The alcohol content

of his urine was determined to be .322 grams per 100 milliliters.

Amerson testified at trial. He claimed that he did not see Patterson

when he turned in front of the motorcycle. Amerson testified that he left

the scene because he was "in a nervous panic" because his driver's license

had been suspended. (R. 709.) Amerson claimed that, after the collision,

he drank from the vodka bottle he had been drinking from earlier that

day "good and hard." (R. 710.) Amerson apologized for killing Patterson.

On appeal, Amerson argues, among other things, that his

convictions for both reckless murder and manslaughter violate double-

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jeopardy principles. Specifically, Amerson contends that, under the

circumstances in his case, manslaughter is a lesser-included offense of

reckless murder.

Amerson was indicted for, and convicted of, both reckless murder

and manslaughter for the homicide of a single victim. The indictment

read as follows:

"…. BRETT STEVEN AMERSON, whose name is otherwise
unknown to the Grand Jury, did, on or about December 18,
2018, recklessly engage in conduct which manifested extreme
indifference to human life and created a grave risk of death to
a person other than the said BRETT STEVEN AMERSON by,
to-wit: OPERATING A MOTOR VEHICLE WHILE UNDER
THE INFLUENCE OF ALCOHOL, and did thereby cause the
death of another person, to-wit: BRADLEY RAY
PATTERSON by, to-wit: STRIKING WITH HIS VEHICLE
THE VEHICLE THAT BRADLEY RAY PATTERSON WAS
OPERATING, in violation of Title 13A-6-2(a)(2) of the Code of
Alabama.

"…. BRETT STEVEN AMERSON, whose name is
otherwise unknown to the Grand Jury, did on or about
December 18, 2018, recklessly cause the death of BRADLEY
RAY PATTERSON by operating a vehicle while intoxicated
and/or failed to yield right-of-way, in violation of Title 13A-6-
3(a)(1) of the Code of Alabama."

(C. 33.)

A person commits the crime of reckless murder "if, under

circumstances manifesting an extreme indifference to human life, he or

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she recklessly engages in conduct which creates a grave risk of death to

a person other than himself or herself, and thereby causes the death of

another person." § 13A-6-2(a)(2), Ala. Code 1975. A person commits the

crime of manslaughter "if he or she … [r]ecklessly causes the death of

another person." § 13A-6-3, Ala. Code 1975.

"It is well settled that '[a] single crime cannot be divided into two

or more offenses and thereby subject the perpetrator to multiple

convictions for the same offense.' " Hutcherson v. State, 243 So. 3d 855,

877 (Ala. Crim. App. 2017) (quoting Ex parte Darby, 516 So. 2d 786, 787

(Ala. 1987)). Section 13A-1-8(b)(1), Ala. Code 1975, provides that "[w]hen

the same conduct of a defendant may establish the commission of more

than one offense, the defendant may be prosecuted for each such offense.

He may not, however, be convicted of more than one offense if … [one

offense is included in the other, as defined in Section 13A-1-9." Section

13A-1-9(a)(3), Ala. Code 1975, defines included offenses as follows:

"(a) A defendant may be convicted of an offense included
in an offense charged. An offense is an included one if:

"(1) It is established by proof of the same or
fewer than all the facts required to establish the
commission of the offense charged; or

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"(2) It consists of an attempt or solicitation to
commit the offense charged or to commit a lesser
included offense; or

"(3) It is specifically designated by statute as
a lesser degree of the offense charged; or

"(4) It differs from the offense charged only
in the respect that a lesser serious injury or risk of
injury to the same person, property of public
interests, to a lesser kind of culpability suffices to
establish its commission.

"(b) The Court shall not charge the jury with respect to
an included offense unless there is a rational basis for a
verdict convicting the defendant of the included offense."

In the present case, the proof required for reckless murder and

manslaughter was simply that Amerson caused Patterson's death by

operating his vehicle in such a manner as to cause Patterson's death.

Thus, "the same or fewer than all of the facts" required to establish

reckless murder were required to establish manslaughter, so that

manslaughter thereby falls within the definition of a lesser-included

offense to reckless murder in § 13A-1-9(a)(1). Furthermore, the degree of

Amerson's culpability was the only question for the jury, and thereby

manslaughter falls within the definition of a lesser-included offense to

reckless murder in § 13A-1-9(a)(4). Amerson's convictions for reckless

murder and manslaughter are based on the homicide of a single victim.

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Under the principles set forth herein, manslaughter is a lesser-included

offense of reckless murder because manslaughter requires no additional

proof other than the proof necessary to establish the commission of

reckless murder. Thus, Amerson was subjected to double jeopardy by

being twice convicted for the same offense. See Ex parte Long, 600 So.

2d 982 (Ala. 1992) (examining the relative degrees of culpability of the

four homicide offenses to determine whether defendant was entitled to a

jury instruction for vehicular homicide as a lesser-included offense of

murder); Crawford v. State, 886 So. 2d 846 (Ala. Crim. App. 2003) (same);

and Culpepper v. State, 827 So. 2d 883 (Ala. Crim. App. 2001).

" 'The proper remedy when a defendant is convicted of both a

greater and a lesser-included offense is to vacate the conviction and the

sentence for the lesser-included offense.' " Hutcherson, 243 at 878

(quoting Williams v. State, 104 So. 3d 254, 265 (Ala. Crim. App. 2012)).

Therefore, we remand this case to the circuit court for the court to vacate

Amerson's manslaughter conviction and the accompanying sentence.

Although Amerson does not raise this issue on appeal, double-

jeopardy principles have also been violated as a result of Amerson's two

convictions and sentences for both reckless murder and the lesser-

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included offense of driving under the influence. This Court has held that

such an issue is a jurisdictional defect that this Court has a duty to notice.

See Strickland v. State, 92 So. 3d 179 (Ala. Crim. App. 2011). Therefore,

we address this issue on appeal despite the fact that it was not raised in

his appeal this Court.2

In determining whether one offense is included in another, this

Court must focus on the factual allegations included in the indictment.

See Ex parte Cole, 842 So. 2d 605 (Ala. 2002). As set forth above,

Amerson's indictment for reckless murder charged that Amerson

recklessly caused the death of Patterson by operating a vehicle while

under the influence of alcohol. Thus, Amerson's driving while under the

influence of alcohol is the State's sole basis of reckless conduct necessary

to establish a violation of § 13A-6-2(a)(2), Ala. Code 1975. Accordingly,

under the circumstances in this case, driving under the influence, as

charged in Count 3 of the indictment, is a lesser-included offense of

reckless murder as charged in Count 1 of the indictment. See Johnson v.

State, 922 So. 2d 137 (Ala. Crim. App. 2005) (holding that driving under

the influence was lesser-included offense of criminally negligent

2 Amerson raised this argument in the circuit court.

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homicide as alleged in indictment, and, thus, separate convictions for

those offenses violated double-jeopardy principles). Therefore, Amerson's

conviction for driving under the influence violates double-jeopardy

principles and, it too, must be vacated on remand.

In addition to this Court's holding of double-jeopardy violations, we

also find that Amerson's sentence for failing to yield is illegal. " 'Matters

concerning unauthorized sentences are jurisdictional.' " Austin v. State,

864 So. 2d 1115, 117 (Ala. Crim. App. 2003) (quoting Hunt v. State, 659

So. 2d 998, 999 (Ala. Crim. App. 1994)). Therefore, although neither

party addresses it, we may take notice of an illegal sentence at any time.

The Alabama Rules of the Road Act, § 32-5A-1 et seq., Ala. Code

1975, governs the operation of vehicles on the roadways in this state.

Section 32-5A-3, Ala. Code 1975, provides that "[i]t is unlawful and,

unless otherwise declared in this chapter with respect to particular

offenses, it is a misdemeanor for any person to do any act forbidden or

fail to perform any act required by this chapter." Section 32-5A-8, Ala.

Code 1975, provides:

"(a) It is a misdemeanor for any person to violate any of
the provisions of this chapter or of Title 32, unless such
violation is by this chapter or other law of this state declared
to be a felony.

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"(b) Every person convicted of a misdemeanor for a
violation of any of the provisions of this chapter for which
another penalty is not provided, shall for a first conviction
thereof be punished by a fine of not more than $100.00 or by
imprisonment for not more than 10 days; for conviction of a
second offense committed within one year after the date of the
first offense, such person shall be punished by a fine of not
more than $200.00 or by imprisonment for not more than 30
days or by both such fine and imprisonment; for conviction of
a third or subsequent offense committed within one year after
the date of the first offense, such person shall be punished by
a fine of not more than $500.00 or by imprisonment for not
more than three months or by both such fine and
imprisonment."

Because § 32-5A-112 does not provide a specific punishment for the

offense of failure to yield, § 32-5A-8 applies. Under § 32-5A-8, Amerson

could receive a sentence of imprisonment for only "not more than 10 days"

to "not more than three months." Therefore, the 180-day sentence

imposed by the circuit court was illegal, and we remand this cause for the

circuit court to conduct a new sentencing hearing at which Amerson is

entitled to be present and represented by counsel and to resentence

Amerson for his failure-to-yield conviction.

Due return shall be made to this Court within 56 days of this

decision and shall include a transcript of the sentencing hearing

conducted on remand as well as the circuit court's orders vacating the

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manslaughter and the driving-under-the-influence convictions and an

amended sentencing order.

Because this case must be remanded to the circuit court for further

proceedings, we pretermit discussion of Amerson's remaining claims

until return is made to this Court.

REMANDED WITH INSTRUCTIONS.

Kellum, McCool, Cole, and Minor, JJ., concur.

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