Patrick Flynn was killed because the State intended to call him to testify as a witness against Michael Dean. However, because he was killed before the circuit clerk had issued a subpoena for this purpose,1 I must reluctantly concur with the majority's conclusion that the trial court correctly dismissed Count IV of Dean's five-count indictment on the ground that listing the victim's name as a witness did not satisfy the "has been subpoenaed" requirement of § 13A-5-40(a)(14), Ala. Code 1975.
Although the State urges us to look beyond the words in §13A-5-40(a)(14) and hold that that section applies to the present fact situation, we are unable to do so, given the Alabama Supreme Court's holding that "`[s]tatutes creating crimes are to be strictly construed in favor of the accused; they may not be held to apply to cases not covered by the words used. . . .'" Ex parte Jackson, 614 So.2d 405, 406 (Ala. 1993) (quoting United States v. Resnick,299 U.S. 207, 209, 57 S.Ct. 126, 81 L.Ed. 127 (1936)). I believe, however, that the Alabama Legislature, in enacting §13A-5-40(a)(14), intended to protect persons the State intended to call as witnesses by making the murder of those individuals a capital offense. Here, the victim's name — Patrick Flynn — was listed on the indictment as one of the prosecution's witnesses *Page 1081 in Case No. CC-2002-578, thus notifying Dean of the identity of one of the individuals who would be testifying against him and placing that person in potential peril. Unfortunately, as currently written, because Dean allegedly killed Patrick Flynn before Flynn was formally subpoenaed to testify, he cannot be charged with the capital offense of murdering a witness who had been subpoenaed to testify against him. Certainly, the legislature did not intend such an illogical result. I, therefore, urge the legislature to amend § 13A-5-49(a)(14) so as to close the loophole created by the current language of that statute.