Jeffery Bernard Harris v. State of Alabama (Appeal from Dallas Circuit Court: CC-18-148)

Rel: February 9, 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-2022-0934
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Jeffery Bernard Harris

v.

State of Alabama

Appeal from Dallas Circuit Court
(CC-18-148)

McCOOL, Judge.

Jeffery Bernard Harris appeals his convictions for attempted

murder, see § 13A-4-2 and § 13A-6-2, Ala. Code 1975, and discharging a

firearm into an occupied automobile, see § 13A-11-61, Ala. Code 1975.
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The trial court sentenced Harris, as a habitual felony offender, to life

imprisonment without the possibility of parole.

Facts and Procedural History

On August 9, 2017, Arvid Coleman, Quintan Davis, and a man

identified at trial only as Owens were driving in Selma when their car

broke down near a mobile-home park. Coleman knew a woman, Dinah

Agee, who lived in the park, so he went to her mobile home to ask for

some water. At that time, Harris and Agee were involved in a romantic

relationship, and Harris was outside working on Agee's car when

Coleman approached her mobile home. According to Coleman, while he

was getting water from an outside spigot, Harris approached him and

wanted to know how he knew Agee. Coleman testified that he "felt

something wasn't right" with Harris's demeanor, so he tried to "ease on

back and get on in the car and get out of the way." (R. 102.) However,

according to Coleman, Harris "started hitting [him] upside the head with

his fist" and then "started hitting [him] on the other side of [his] head

with [a] gun." (Id.) Regarding what occurred next, Coleman testified:

"Q. Did you see other people out there that day?

"A. Yes, there were other people out there, children and
a couple other people was out there. So the first thing I could

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think of to save my life and not to put anybody else in danger
was, I made the decision to fall back in the car. And I told
[Owens], I said, 'Man, just pull off.'

"….

"Q. And where did you sit in the car?

"A. In the passenger's seat.

"Q. Okay.

"A. And I said, 'Pull off, man.' I said, 'Just go on and pull
off. He got that gun.' I said, 'Just go on and pull off.' So we
went through the back part of the [mobile-home] park. There
was no, really, way to get out. But somehow, Mr. Owens
maneuvered through some pipes and stuff and he got out to
the other side, like, the U-part of the [mobile-home] park. So
as we were going around, [Harris] started shooting – when we
started pulling out, he started shooting at the car. So Mr.
Owens made a quick right turn, and he maneuvered through
the back of the [mobile-home] park somehow, and we got out
to the other side of the road. And when we got around the
other side, headed back towards the front part of the [mobile-
home] park, here comes Mr. Harris running, shooting the gun
right there. And he stood there and dumped that gun – all
those bullets almost into that car. Everybody ducked in the
car. I even ducked. But when I raised up, another bullet had
caught me and hit me in my face right here (indicating).

"Q. How close was Mr. Harris to you-all in the car?

"A. I'd say about 20 feet, 30 feet maybe.

"….

"Q. Now, when you were being shot at, did you see Mr.
Harris shooting?

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"A. I did.

"….

"Q. Now, you said as soon as you-all were pulling off, he
started shooting, correct?

"A. Yes, he did.

"Q. Now, was it a continuous shooting, and he just kept
shooting as you-all were driving?

"A. I actually couldn't tell because I was ducked down
and we was trying to get out of there. But I know a couple
bullets hit that car I don't know how many times he shot while
we was trying to get away. But I know when we got free, it's
like he just couldn't let it go. He just kept coming for some
reason. So he ran to the front and started shooting again.
And that's when I got hit."

(R. 103-09.) When an evidence technician with the Selma Police

Department inspected the car that Owens drove from the scene, she

found two bullet holes – one "in the trunk above the tail light and one …

in the front windshield." (R. 73.)

Det. Devan McGuire of the Selma Police Department responded to

the shooting, and, when he arrived at the scene, Harris and Lakeshia

Prince were present. According to Det. McGuire, Prince told him "that

she just witnessed Jeffery Harris shoot some guys or shoot into a vehicle,"

and Det. McGuire took Harris into custody. (R. 53.) Harris was then

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taken to the Selma Police Department for questioning, and the shirt he

was wearing, which contained blood spatter, was collected for evidence.

The State attempted to present testimony from Joseph Lee, a

forensic scientist with the Alabama Department of Forensic Sciences,

regarding a DNA analysis he had conducted on the blood found on

Harris's shirt. Defense counsel objected to Lee's testimony on the basis

that he had not received "any notice of [Lee] to testify" and that the

discovery he had been provided did not include Lee's "analysis of the

shirt." (R. 89.) The trial court then told the State: "I'll tell you what, if

[defense counsel] doesn't have [Lee's report], you can't use it. That's the

bottom line." (R. 91.) The State then asked the trial court if the parties

could have a moment to "go through [the discovery] file" (id.) to make

certain that Lee's report was not in the file, at which point the following

colloquy occurred:

"THE COURT: … [L]et me make it clear for the record.
Now, it was brought to my attention just now [that Harris]
said he did not have the report that this witness purports to
testify to. Now, if [Harris] does not have this discovery, it
can't be used. Now, you-all asked for a minute to go through
his file and see what discovery he had. You-all do that and
report back to me and see what y'all find. But we've got to be
sure discovery is done properly. The rules say you're supposed
to get it within 14 days after it's requested or after I order it.

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And so this is going to have to stop, period. So you all go
through and see. …

"[THE STATE]: Yes, Your Honor. And may I say for the
record, the State has not excluded anything intentionally or
purposefully. As stated, I have checked twice before to see if
[defense counsel] had everything. There should at least be a
mention that there was DNA analysis. At no time have they
notified us [that they did not] have a DNA analysis report.

"THE COURT: … I trust you, I believe in you, I count
on you. And because I have faith in you that there was
nothing intentionally done, I'm not going to dismiss this case.
See, if I thought there was something intentionally being
done, there was some prosecutorial misconduct, I'd dismiss
this case. But I'm not going to dismiss the case. I'm just going
to prohibit anything [Harris] doesn't have. They have to have
notice. If not, the appellate court is going to throw this case
back at me and make me have to do it again. I'm not doing all
that. I'm doing these cases one time. That's the bottom line.

"[DEFENSE COUNSEL]: Judge, in all fairness, we have
a lot of discovery here. It may be an oversight. I don't know.

"THE COURT: If it's an oversight, it's an oversight.
That's the point. I'm not going to dismiss the case; it's an
oversight.

"[DEFENSE COUNSEL]: Thank you, Judge.

"….

"THE COURT: Now, you all report to me and let me
know what you all find with this discovery issue.

"[THE STATE]: Your Honor, it does not appear to be in
[the] file [defense counsel] has with him today.

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"THE COURT: Then it's going to be excluded from use
here in this trial. That's just the bottom line."

(R. 92-95.)

Harris testified as follows regarding the event in question:

"Q. Would you please tell us in your words what
happened?

"….

"A. So … while I was [working on Agee's car], Mr.
Coleman and two other guys, they pulled up beside the street,
right by the house, but, you know, they was on the shoulder
of the road. So [Coleman] walked up in the yard, and he spoke
to [Agee], and he said that he hadn't came by and seen her in
a while because he had went to Mobile to check on his
daughter or somebody, and then he asked her for water. So
when he asked her for water – so I thought to myself, I said,
well, this must be the guy that everybody was telling me about
that was hanging around over here. So he get the water and
he go back to the car, and he put that jug of water in there,
and then he came back up in the yard as I was still right
beside the mobile home, you know, tending to the car. So I
heard [Agee] tell him just get that water and go. So he walked
up beside the mobile home near where I was working on the
car at, and he went to the water faucet there, and he filled the
jug up again. So I told him, I said, 'Hey, man,' I said, 'She told
you to leave.' I said, 'You came here the other night, and I was
in the shower, and she told you to leave and not to come back.
But … you're still coming back around here.' So then he
turned to me and said who the F am I? So I said, 'I stay here.'
So he approached me, and I shoved him, and he stumbled
back. And he kind of rushed me, and I flipped him to the
ground. After that, I noticed that the two guys that were with
him, they closed the hood and went to break towards the car.

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So when they broke towards the car he got off the ground and
he went to running out towards the car, and they left.

"Q. With that in mind, Mr. Harris, when did you pull out
a gun and shoot him?

"A. I never had a gun.

"….

"Q. Did you see two more people in his car?

"A. I seen a white guy that was driving, and I seen a guy
in the back with dreadlocks. And from my indication, when I
heard shots, I fell back behind Agee's car. I'm not trying to
see who's shooting. You know, from where I'm from – I'm from
the slums, I'm from the hood. If anybody's shooting, you're
trying to run and get down.

"….

"Q. So … if I understand correctly, you do recall
gunshots being fired?

"A. Yes, sir.

"Q. And you didn't fire them?

"A. No, sir.

"Q. So if you didn't fire them, as circumstantial evidence
indicated, they would be coming from where? Do you know?

"A. Evidently, it had to have been coming from the car."

(R. 165-80.) Agee likewise testified that Harris had attempted to make

Coleman leave her property but that he had not shot at Coleman.

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Discussion

Harris raises two claims on appeal that, he says, entitle him to

relief from his convictions. We address those claims in turn.

I.

Harris argues that the trial court erred by denying his motion for a

judgment of acquittal because, he says, the State's evidence was not

sufficient to sustain his convictions for attempted murder and

discharging a firearm into an occupied automobile.

" ' "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),
aff'd, 471 So. 2d 493 (Ala. 1985)). ' "The test used in
determining the sufficiency of evidence to sustain a conviction
is whether, viewing the evidence in the light most favorable
to the prosecution, a rational finder of fact could have found
the defendant guilty beyond a reasonable doubt." ' Nunn v.
State, 697 So. 2d 497, 498 (Ala. Crim. App. 1997) (quoting
O'Neal v. State, 602 So. 2d 462, 464 (Ala. Crim. App. 1992)).
' "When there is legal evidence from which the jury could, by
fair inference, find the defendant guilty, the trial court should
submit [the case] to the jury, and, in such a case, this court
will not disturb the trial court's decision." ' Farrior v. State,
728 So. 2d 691, 696 (Ala. Crim. App. 1998) (quoting Ward v.
State, 557 So. 2d 848, 850 (Ala. Crim. App. 1990)). 'The role
of appellate courts is not to say what the facts are. Our role
... is to judge whether the evidence is legally sufficient to allow

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submission of an issue for decision [by] the jury.' Ex parte
Bankston, 358 So. 2d 1040, 1042 (Ala. 1978)."

Wilson v. State, 142 So. 3d 732, 809 (Ala. Crim. App. 2010).

Section 13A-4-2(a) provides that "[a] person is guilty of an attempt

to commit a crime if, with the intent to commit a specific offense, he or

she does any overt act towards the commission of the offense." Section

13A-6-2(a)(1) provides that a person commits the crime of murder if,

"[w]ith intent to cause the death of another person, he or she causes the

death of that person or of another person."

Section 13A-11-61(a) provides that "[n]o person shall shoot or

discharge a firearm, explosive or other weapon which discharges a

dangerous projectile into any occupied or unoccupied dwelling or building

or railroad locomotive or railroad car, aircraft, automobile, truck or

watercraft in this state."

In this case, Coleman testified that Harris shot at him while he

(Coleman) was inside an automobile, and Harris's intent to kill could be

inferred from his use of a deadly weapon. Henderson v. State, 248 So. 3d

992, 1007 (Ala. Crim. App. 2017). Thus, Coleman's testimony was

sufficient to prove beyond a reasonable doubt that Harris committed the

crimes of attempted murder and discharging a firearm into an occupied

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automobile. Accordingly, the trial court did not err by denying Harris's

motion for a judgment of acquittal and submitting the case to the jury.

See Christianson v. State, 601 So. 2d 512, 520 (Ala. Crim. App. 1992)

(holding that the "victim's testimony … was alone sufficient to establish

a prima facie case of … attempted murder"), overruled on other grounds

by Ex parte Thomas, 649 So. 2d 3 (Ala. 1994); Rowell v. State, 647 So. 2d

67, 69 (Ala. Crim. App. 1994) (holding that the evidence was sufficient to

sustain the defendant's conviction for attempted murder because the

victim "positively identified the [defendant] as the person who shot him,"

which "alone established a prima facie case of attempted murder"); and

Woods v. State, 845 So. 2d 843, 846 (Ala. Crim. App. 2002) (holding that

the evidence was sufficient to sustain the defendant's conviction for

discharging a firearm into an occupied automobile because the occupants

of the automobile testified that the defendant had shot at them while

they were inside the automobile).

We acknowledge Harris's arguments that there was no physical

evidence linking him to the crimes, that Coleman's testimony was

uncorroborated, and that his own testimony indicated that he had not

committed the crimes. However, these arguments go to the weight of the

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evidence, not its sufficiency. See Thomas v. State, 622 So. 2d 415, 419

(Ala. Crim. App. 1992) (holding that there was sufficient evidence to

sustain the appellant's convictions, "[d]espite the fact that there was no

physical evidence linking the appellant to the commission of the crime");

and Adams v. State, 336 So. 3d 673, 686 (Ala. Crim. App. 2020) (" 'Matters

of the credibility of witnesses and any apparent conflicts in the evidence

go to the weight of the evidence and not to the sufficiency.' " (quoting

Pettway v. State, 624 So. 2d 696, 698 (Ala. Crim. App. 1993))).

To the extent Harris has challenged the weight of the evidence, that

claim is without merit. In Thompson v. State, 97 So. 3d 800, 810 (Ala.

Crim. App. 2011), this Court stated:

" ' "We have repeatedly held that it is not the
province of this court to reweigh the evidence
presented at trial. ' "The credibility of witnesses
and the weight or probative force of testimony is
for the jury to judge and determine." ' " '

"Seaton v. State, 645 So. 2d 341, 342-43 (Ala. Crim. App.
1994), quoting Johnson v. State, 555 So.2d 818, 819-20 (Ala.
Crim. App. 1989) (citations omitted).

" 'Once a prima facie case has been submitted
to the jury, this Court will not upset the jury's
verdict except in extreme situations in which it is
clear from the record that the evidence against the
accused was so lacking as to make the verdict
wrong and unjust. Deutcsh v. State, 610 So. 2d

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1212, 1234-35 (Ala. Cr. App. 1992). This Court will
not substitute itself for the jury in determining the
weight and probative force of the evidence. Benton
v. State, 536 So. 2d 162, 165 (Ala. Cr. App. 1988).'

"May v. State, 710 So. 2d 1362, 1372 (Ala. Crim. App. 1997).

" 'Furthermore, on appeal, there is a
presumption in favor of the correctness of the jury
verdict. Saffold v. State, 494 So. 2d 164 (Ala. Cr.
App. 1986). Although that presumption of
correctness is strong, it may be overcome in a
limited category of cases where the verdict is found
to be palpably wrong or contrary to the great
weight of the evidence. Bell v. State, 461 So. 2d
855, 865 (Ala. Cr. App. 1984).'

"Henderson v. State, 584 So. 2d 841, 851 (Ala. Crim. App.
1988)."

In this case, Coleman's testimony implicated Harris in the crimes,

and, contrary to Harris's contention, Coleman's testimony was

corroborated by Prince, who told Det. McGuire that Harris had

committed the crimes. On the other hand, Harris denied committing the

crimes, and his testimony was corroborated by Agee. Thus, this case is

far from being in the "limited category of cases" in which "the evidence

against the accused was so lacking as to make the verdict wrong and

unjust." Thompson, 97 So. 3d at 810 (citations omitted). Rather, this

case presents a textbook example of conflicting evidence that the jury was

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tasked with resolving based on its credibility determinations.

Accordingly, Harris is not entitled to relief on this claim.

II.

Harris argues that the trial court erred by not dismissing the case

with prejudice after the court was made aware that the discovery the

State provided to him did not include the DNA analysis of the blood on

his shirt. However, Harris never asked the trial court to dismiss the case,

nor did he object when the trial court stated of its own accord that it was

not going to dismiss the case. It is well settled that "a trial court ' "will

not be put in error on grounds not assigned at trial." ' " Anderson v. State,

360 So. 3d 1117, 1123 (Ala. Crim. App. 2020) (quoting Ex parte Coulliette,

857 So. 2d 793, 794 (Ala. 2003), quoting in turn Ex parte Frith, 526 So.

2d 880, 882 (Ala. 1987))). Thus, Harris cannot obtain relief on this claim.

Moreover, in arguing that dismissal was warranted, Harris alleges

that "the State committed prosecutorial misconduct so egregious that it

denied [him] his constitutional right to a fair trial." (Harris's brief, p. 16.)

However, as a sanction for the State's discovery violation, the trial court

excluded the DNA analysis from evidence, which it was authorized to do

by Rule 16.5, Ala. R. Crim. P. Thus, the trial court protected Harris's

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right to a fair trial and, in doing so, did not impose a harsher sanction

than was necessary. As the Alabama Supreme Court has explained, "a

trial court has broad discretion in imposing sanctions on a party who fails

to comply with the trial court's discovery order," and that sanction

"should not be harsher than necessary to satisfy the discovery rules."

State v. Fowler, 32 So. 3d 21, 29 (Ala. 2009). Accordingly, for this reason

as well, Harris is not entitled to relief on this claim.

III.

Although Harris is not entitled to relief from his convictions, we

must remand this case for the trial court to correct a sentencing error.

Neither party raises any issue with respect to Harris's sentences, but

" '[m]atters concerning unauthorized sentences are jurisdictional,' Hunt

v. State, 659 So. 2d 998, 999 (Ala. Crim. App. 1994); therefore, we may

take notice of an illegal sentence at any time." Austin v. State, 864 So.

2d 1115, 1117 (Ala. Crim. App. 2003).

Harris was sentenced under the Habitual Felony Offender Act ("the

HFOA"), see § 13A-5-9, Ala. Code 1975, based on his four prior felony

convictions, one of which was for a Class A felony. (R. 291.) The HFOA

states, in relevant part:

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"(c) In all cases when it is shown that a criminal
defendant has been previously convicted of any three felonies
that are Class A, Class B, or Class C felonies and after such
convictions has committed another Class A, Class B, or Class
C felony, he or she must be punished as follows:

"….

"(2) On conviction of a Class B felony, he or
she must be punished by imprisonment for life or
any term of not less than 20 years.

"(3) On conviction of a Class A felony, where
the defendant has no prior convictions for any
Class A felony, he or she must be punished by
imprisonment for life or life without the possibility
of parole, in the discretion of the trial court.

"(4) On conviction of a Class A felony, where
the defendant has one or more prior convictions for
any Class A felony, he or she must be punished by
imprisonment for life without the possibility of
parole."

The sentencing order indicates that the trial court sentenced Harris

to life imprisonment without the possibility of parole for both his

attempted-murder conviction and his discharging-a-firearm-into-an-

occupied-automobile conviction. (C. 109.) Attempted murder is a Class

A felony, see § 13A-4-2(d)(1); thus, pursuant to § 13A-5-9(c)(4), the only

sentence the trial court could impose for Harris's conviction for that

offense was life imprisonment without the possibility of parole. However,

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discharging a firearm into an occupied automobile is a Class B felony, see

§13A-11-61(b); thus, pursuant to § 13A-5-9(c)(2), the sentencing range for

Harris's conviction for that offense was "imprisonment for life or any

term of not less than 20 years." Consequently, for that conviction,

Harris's sentence of life imprisonment without the possibility of parole is

illegal. See Glass v. State, 14 So. 3d 188, 194 (Ala. Crim. App. 2008)

(noting that a sentence "outside the limit provided by statute" is an illegal

sentence). We therefore reverse Harris's sentence for his discharging-a-

firearm-into-an-occupied-automobile conviction and remand the case for

the trial court to conduct a new sentencing hearing at which the court

imposes a sentence for that conviction that complies with § 13A-5-9(c)(2).

The trial court shall take all necessary action to ensure that the circuit

clerk makes due return to this Court within 35 days of the date of this

opinion, and the return to remand shall include a transcript of the

sentencing hearing and the court's written sentencing order.

Conclusion

For the reasons set forth in this opinion, Harris's convictions are

affirmed, as is his sentence for his attempted-murder conviction.

However, we reverse Harris's sentence for his discharging-a-firearm-

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into-an-occupied-automobile conviction and remand the case for the trial

court to hold a new sentencing hearing at which it imposes a legal

sentence for that conviction.

AFFIRMED AS TO CONVICTIONS; AFFIRMED IN PART AND

REVERSED IN PART AS TO SENTENCES; AND REMANDED WITH

INSTRUCTIONS.

Windom, P.J., and Kellum, Cole, and Minor, JJ., concur.

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