State of Alabama v. Donald McMillian, Jr.

Rel: November 7, 2025

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, 2025-2026
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CR-2025-0042
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State of Alabama

v.

Donald McMillian, Jr.

Appeal from Mobile Circuit Court
(CC-23-293)

COLE, Judge.

The State of Alabama appeals the order of the Mobile Circuit Court

dismissing with prejudice the indictment charging Donald McMillian,

Jr., with second-degree assault, a violation of § 13A-6-21, Ala. Code 1975.

Under the circumstances discussed below, we hold that the circuit court's

dismissal of McMillian's indictment with prejudice constituted an abuse
CR-2025-0042

of discretion. Thus, we reverse and remand for further proceedings

consistent with this opinion.

Facts and Procedural History

On January 20, 2023, a Mobile County grand jury indicted

McMillian for second-degree assault; the indictment reads as follows:

"DC22-00069 ASLT 2/PHYS INJ/WEAP
"Bond Amount: $3000.00

"The Grand Jury of said county charge that, before the finding
of this indictment, Donald McMillian Jr., whose name is to
the Grand Jury otherwise unknown, did, on or about
December 28, 2021, with the intent to cause physical injury to
Demetris Maxie, by means of a deadly weapon or dangerous
instrument, to-wit: by firearm, in violation of § 13A-6-21 of the
Code of Alabama, against the peace and dignity of the State
of Alabama."

(C. 7 (emphasis added).) On April 12, 2023, McMillian appeared in court

for his arraignment, waived the reading of the indictment, and entered a

plea of not guilty. (C. 29.)

On October 11, 2023, the State moved to amend McMillian's

indictment, requesting to change the statutory citation therein from a

general second-degree-assault charge under § 13A-6-21 to a specific

second-degree-assault charge under § 13A-6-21(a)(2) -- reflecting that

McMillian committed a second-degree assault by causing physical injury

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with a deadly weapon or dangerous instrument. (C. 36-39.) The State

asserted that "[n]o different offense would be charged and the substantial

rights of the defendant would not be prejudiced." (C. 37.) Specifically,

the State explained that McMillian would suffer no prejudice from the

amendment because "the indictment track[ed] the language of … § 13A-

6-21(a)(2), Assault in the Second Degree Causing Physical Injury with

Weapon" and because "[t]he caption of the indictment, naming the

offense, reads Assault in the Second Degree Causing Physical Injury with

Weapon." (C. 36 (emphasis added).) In addition, the State explained that

McMillian had already been "provided with discovery, all of which

indicated that he was charged with Assault in the Second Degree

Causing Physical Injury with Weapon." (C. 37.) The State further

asserted that McMillian had been provided with the specifics of the

offense, including "officer's narratives [that] referenced [the] Defendant

shooting the victim with a firearm [and] causing injury to the victim,

witness statements [that] referenced [the] Defendant shooting the victim

with a firearm causing injury to the victim, [and] photos of [the] victim's

injuries [that] [we]re consistent with [the] victim being shot with a

firearm." (C. 37.) (See also C. 8-10 (circuit court's January 20, 2023,

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discovery order) and C. 25-28 (circuit court's April 11, 2023, orders

granting McMillian's motion for discovery of evidence under Rule 404(b),

Ala. R. Evid., any evidence covered by Rule 16, Ala. R. Crim. P., any deals

or promises the State made with witnesses against McMillian, and any

discoverable information regarding the State's experts).) The circuit

court granted the State's motion to amend McMillian's indictment on

October 12, 2023. (C. 39.)

On October 23, 2023, McMillian was "in court for trial," but his case

was "crowded out," and the circuit court "reset [McMillian's case] for trial

on February 5, 2024." (C. 44.) On February 5, 2024, McMillian's case

was again "crowded out" and "reset for trial on September 9, 2024." (C.

46.) On September 9, 2024, McMillian's case was "reset for trial on

January 6, 2025." (C. 48.) When McMillian appeared for trial on January

6, 2025, he made an oral motion to dismiss his indictment with prejudice

based upon the indictment's failure to allege an offense, but, in the

alternative, he asked the court for a "continuance until [the State] can do

a superseding indictment so he [would not] have to bond out again." (C.

53; R. 4.) The circuit court set McMillian's motion for a hearing on

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January 8, 2025, and reset McMillian's case for trial on May 19, 2025.

(C. 53; R. 4.)

At the January 8, 2025, motion hearing, McMillian informed the

circuit court that, although he was arrested on December 30, 2021, he

was not indicted until January 20, 2023, almost 13 months after his

arrest. (R. 6-7.) McMillian explained that, on October 11, 2023, the State

moved to amend the indictment because the State wanted to "specifically

restrict the code section" to § 13A-6-21(a)(2) to charge him "specifically"

with "causing injury by means of a deadly weapon or dangerous

instrument." (R. 7.) However, McMillian asserted that a "terminal defect

in the indictment" remained because the body of the indictment did not

allege the essential element that McMillian actually "cause[d] physical

injury." (R. 8.) McMillian's counsel acknowledged that she "really didn't

care … about [the State] changing the code section" and that she herself

"didn't catch … the flaw in the language [the omission of causing physical

injury]" until "getting [her] opening slides ready" for trial. (R. 8.)

Nonetheless, McMillian asked that the charge be dismissed with

prejudice. The State asked to nolle pros the indictment so that McMillian

could be reindicted "this term" and proceed to the May 19, 2025, trial date

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that the court had already set on January 6, 2025, when McMillian made

his motion the morning trial was set to begin. (R. 9.)

McMillian argued below that the indictment should be dismissed

with prejudice because he had "no criminal history" and because the case

had already been pending trial approximately three years and would be

delayed further if the trial was continued. (R. 10-14.) McMillian did not

mention the issue of a speedy trial until the trial court suggested that "it

comes down to a speedy trial issue at this point in fairness to the

defendant." (R. 12.) McMillian then said that he was prejudiced by the

delay because he lost a job after his arrest and had been "unable to get

jobs paying what he is capable of making," although he had gotten

another job and had "been there for three years." (R. 13, 15.) McMillian

also generally asserted that the second-degree-assault charge had been

"hanging over his head for three years" and that "[t]he longer a case rocks

on, the harder it is to get witnesses" and the more "[m]emories fade." (R.

5.) However, McMillian acknowledged that neither he nor the State had

ever requested a trial continuance before the trial setting on January 6,

2025, when McMillian moved for dismissal of the defective indictment.

(R. 12, 14.) McMillian also conceded that the State's failure to allege in

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the body of the indictment that he had "caused physical injury" was

"negligent" and "not intentional." (R. 15.) Finally, McMillian asked that,

if the circuit court dismissed the case without prejudice, the circuit court

leave the matter on the docket so that he would not "have to bond a

second time". (R. 16.)

The State vigorously argued that the charge against McMillian

should not be dismissed with prejudice because the evidence indicating

that McMillian had shot his "brother-in-law" 1 was substantial. (R. 11,

17-20.) Although the perpetrator was wearing a mask at the time, the

witnesses who identified McMillian as the shooter had "known [him] for

most of his life." (R. 17.) In addition, witnesses "identified a [gray Toyota

Camry] that was linked to [McMillian] that he was [driving at the time

of the shooting] and then drove off in." (R. 18.) Witnesses also said that

the shooting was prompted by an argument that McMillian had with the

victim at a family Christmas party the previous day. In addition, the

1McMillian's counsel explained that the sister of the victim was
essentially McMillian's "wife" because they had been together "like, 15
years." (R. 11.)

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State informed the court that the victim and witnesses were ready to

testify at McMillian's trial. (R. 17-18.)

The circuit court recognized that McMillian had been charged with

a "violent crime" but was inclined to dismiss McMillian's second-degree-

assault charge with prejudice based on speedy-trial concerns. The circuit

court noted that, although the indictment previously had been amended,

the defect that McMillian asserted existed had been neither discovered

nor corrected, and that McMillian's counsel had not waited to seek to

dismiss the indictment after the jury was sworn or at "the close of the

State's case." (R. 21-22, 24.) Immediately after the motion hearing,

which occurred two days after the case had been set for trial, the State

filed a written objection to the dismissal of McMillian's indictment with

prejudice. (C. 55-56.) However, on the same day, the circuit court

entered an order finding that McMillian's indictment was "fatally flawed"

because "[i]t alleges Defendant McMillian intended to cause physical

harm to the victim, but it does not allege that he actually did so." The

circuit court granted McMillian's motion to dismiss the indictment with

prejudice and denied the "State's motion to nolle pros this action." (C.

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57.) The order did not mention denial of a speedy trial as a ground for

the dismissal.

In accordance with Rule 15.7, Ala. R. Crim. P., the State timely filed

its appeal of the circuit court's order and properly certified that this

appeal was "not brought for the purpose of delay and that the order

appealed, if not reversed, will be fatal to the prosecution of the charge in

this case." (C. 59.)

Analysis

As an initial matter, the State concedes that McMillian's

indictment failed to charge an offense because it failed to allege that

McMillian caused the victim physical injury, an essential element of the

offense. See, e.g., Adams v. State, 124 So. 3d 750, 754-55 (Ala. Crim. App.

2013) (" ' " 'An indictment that fails to allege each material element of an

offense fails to charge that offense.' " ' " (citations omitted)). The State

also concedes that McMillian's motion to dismiss the indictment was

timely under Rule 15.2, Ala. R. Crim. P., which provides that objections

based on the "failure of the charge to state an offense may be raised … at

any time during the pendency of the proceeding." The State, however,

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argues that the circuit court abused its discretion by dismissing

McMillian's indictment with prejudice. We agree.

A circuit court has the authority to dismiss an indictment for failure

to charge an offense. See, e.g., State v. Walker, 192 So. 3d 426, 428 (Ala.

Crim. App. 2015) (recognizing a court's authority to dismiss an

indictment based on the indictment's failure to charge an offense), Rule

13.5(c)(1), Ala. R. Crim. P. (providing that a motion to dismiss the

indictment "may be based upon … the failure of the indictment to charge

an offense"), and § 15-8-130, Ala. Code 1975 (providing that an

indictment may be dismissed with permission of the court). However,

"[w]hen … an indictment [is] quashed] … because it charged no offense

…, the court may order another indictment to be preferred for the offense

charged or intended to be charged." § 15-8-131, Ala. Code 1975. Indeed,

it is well settled that "it is the better practice to bring the second

indictment before the first is quashed." Johnson v. State, 479 So. 2d

1377, 1381 (Ala. Crim. App. 1985). In short, generally, when an

indictment is quashed or dismissed because of a defect, another

indictment may be issued.

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In State v. Watts, 35 So. 3d 1 (Ala. Crim. App. 2009), this Court

considered whether a circuit court abused its discretion by dismissing

charges without prejudice against a defendant based on a "lack of

prosecution" because the victim and a witness were not present for voir

dire. We recognized that a circuit court " ' "is vested with discretion in the

conduct of a trial, and the appellate courts will not interfere with the

exercise of that discretion unless it clearly appears that there has been

an abuse of discretion." ' " Id. at 4 (quoting Baker v. State, 906 So. 2d 210,

269 (Ala. Crim. App. 2001) (reversed on other grounds by Ex parte Baker,

906 So. 2d 277 (Ala. 2004)), quoting in turn Carden v. State, 621 So. 2d

342, 346 (Ala. Crim. App. 1992)). We also recognized that "[i]t is well

settled that the process of voir dire examination remains within the

sound discretion of the circuit court." Id. (citing Clark v. State, 294 Ala.

493, 495, 318 So. 2d 822, 824 (1975)). Nonetheless, this Court concluded

that, under the circumstances of that case, the circuit court had abused

its discretion because it "could have imposed less stringent measures

than dismissing the charges." Id. at 7. Specifically, "Watts made no

showing of prejudice, on speedy-trial ground or otherwise, as a result of

the absence of the victim and witness for presentation to the venire; the

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victim and the witness would be available to testify for trial; and there

was no indication of undue continuances." Id.

In State v. Stallworth, 337 So. 3d 1201, 1210 (Ala. Crim. App. 2021),

we again acknowledged a circuit court's interest in managing its case

docket, including placing "reasonable time limits on the parties in a case."

However, we explained that the circuit court's "interest does not allow

the court to interfere with the State's duty to prosecute cases, which the

dismissal of the indictment in this case does, and does not allow the court

to exercise its authority in an unreasonable manner." Id. Relying on

Watts, supra, we held that

"the circuit court did not have the authority to grant
Stallworth's motion to dismiss the indictment against him
based on a factual determination of the evidence or for the
State's failure to object to the motion to dismiss the
indictment within a prescribed time, especially where the
delay in the filing of the objection was not unreasonable and
did not interfere with Stallworth's right to a speedy trial."

Id.

As we recognized in Watts and Stallworth, "the circuit court's

discretion to dismiss an indictment is not unlimited." Stallworth, 337 So.

3d at 1210. Although a circuit court has the authority to dismiss charges

against a defendant, when the indictment fails to include an essential

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element of the offense, as in this case, "a circuit court shall not

'impermissibly interfere with the State's right to prosecute' and its

discretion should not be exercised in an ' " arbitrary, fanciful, or clearly

unreasonable" manner.' " Id. (quoting Watts, 35 So. 3d at 5-7 (emphasis

added).) As in Watts and Stallworth, "the circuit court could have

imposed less stringent measures than dismissing the [second-degree-

assault] charge[] against" McMillian with prejudice. Watts, 35 So. 3d at

7. Indeed, the State asked the circuit court to nolle pros the defective

indictment and to allow it to reindict McMillian "this term," and the

circuit court had already set a new trial date for May 19, 2025, a mere

fourth months later. (R. 9.) In addition, the victim and witnesses were

ready to testify. (R. 17.)

Moreover, McMillian made no showing that would have supported

the circuit court's dismissal with prejudice on speedy-trial grounds or

otherwise. Although the indictment was defective for failing to state that

McMillian had "caused physical injury," the record shows that the charge

-- that he committed a second-degree assault by shooting his brother-in-

law in violation of § 13A-6-21(a)(2) -- was understood by McMillian and

his counsel, and there was no allegation that McMillian had been unable

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to prepare a defense. Indeed, McMillian's counsel had been representing

him since April 10, 2023, and only noticed the defect on the eve of trial as

she was preparing her "opening slides." (R. 8, 15.) Likewise, there was

no allegation of the State's acting in bad faith. McMillian acknowledged

that the State's failure to recognize the defect in the indictment was no

more than negligence. McMillian also acknowledged that the State had

never sought a continuance until the motion to dismiss was made on the

day of trial, and the State reasonably asked to nolle pros the indictment

and reindict McMillian "this term" in time for the May 19, 2025, trial

date. Finally, although McMillian alleged that he had been prejudiced

by the three-year delay since his arrest, his contentions were general and

speculative -- that the charge had been "hanging over his head for three

years" and that witnesses' memories fade over time. (R. 15.) The closest

McMillian got to demonstrating specific prejudice was stating that he

had lost a job upon arrest and was "unable to get jobs paying what he is

capable of making as a result"; however, McMillian also informed the

circuit court that he had secured another job, which he had held for "three

years." (R. 13, 15.)

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Although McMillian contends on appeal that he made a "showing

of prejudice," the record is clear that the showing he made was

insufficient to suggest a speedy-trial violation under Barker v. Wingo,

407 U.S. 514 (1972). When an infringement on the right to a speedy trial

under the Sixth Amendment is claimed, we consider the following four

Barker factors: "(1) the length of the delay, (2) the reason for the delay,

(3) the defendant's assertion of his right to a speedy trial, and (4)

prejudice to the defendant." Cartwright v. State, 346 So. 3d 22, 31 (Ala.

Crim. App. 2020) (citing Barker, 407 U.S. at 530). Here, the three-year

delay had nothing to do with the State. Had the circuit court dismissed

the charge against McMillian without prejudice so that McMillian could

be reindicted and tried on May 19, 2025, only a four-month delay would

have been attributable to the State's negligence. In addition, the fact

that McMillian did not raise any speedy-trial concern until he moved to

dismiss the indictment on January 6, 2025, indicates that McMillian,

who was not incarcerated but working during the delay, suffered no

prejudice. Moreover, McMillian was required to " 'point to specific facts

… to support his claim of actual prejudice.' " Cartwright, 346 So. 3d at

36 (quoting Irvin v. State, 940 So. 2d 331, 344 (Ala. Crim. App. 2005)).

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" ' " ' [ S]peculative allegations, such as general allegations of loss of

witnesses and failure of memories, are insufficient to demonstrate the

actual prejudice....' " that the appellant must establish.' " Id. (quoting

Irvin, 940 So. 2d at 344, quoting in turn Haywood v. State, 501 So. 2d

515, 518 (Ala. Crim. App. 1986), quoting in turn United States v. Butts,

524 F.2d 975, 977 (5th Cir. 1975)). Clearly, McMillian failed to make any

showing to warrant dismissal of his indictment with prejudice under the

Barker factors. Furthermore, McMillian has cited no case that suggests

that he was entitled to a "windfall" -- release from criminal liability for a

violent crime -- merely because he raised the indictment's defect before

the jury was sworn and "didn't wreck a trial week." (R. 22.)

Considering the totality of the circumstances, we hold that the

circuit court abused its discretion by dismissing the second-degree-

assault charge against McMillian with prejudice. Dismissing an

indictment with prejudice is an extreme sanction and was not warranted

in these circumstances.

Conclusion

The circuit court's order dismissing McMillian's second-degree-

assault charge with prejudice is due to be reversed, and this case is

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remanded to the circuit court for further proceedings consistent with this

opinion.

REVERSED AND REMANDED.

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

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