Allen v. State
| Decision Date | 13 November 1984 |
| Docket Number | 1 Div. 844 |
| Citation | 462 So.2d 1031 |
| Parties | Billie ALLEN v. STATE. |
| Court | Alabama Court of Criminal Appeals |
M.A. Marsal and George L. Simons, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., and Phillip Luke Hughes, Asst. Atty. Gen., for appellee.
Billie Allen was convicted of the murder of Charles Darren Andrews and sentenced to twelve years in the penitentiary. He raises three questions on appeal.
First, Allen argues that the State's evidence was insufficient to convict him of murder because it was his brother-in-law, Albert Stringer, who shot the deceased, and there was no evidence proving that Allen conspired with Stringer to kill Andrews.
The State's evidence established that, several months prior to the fatal shooting, Andrews (the murder victim) had beaten Allen severely in a barroom brawl. Allen later stated that he would "get even" with Andrews, saying "pay-back's gonna be hell", and bragging that he could tell his brother-in-law Stringer to "blow [someone's] brains out and he'd do it." Furthermore, the State presented evidence that, on the night of the shooting, Allen, Stringer and Ricky McPherson went out looking for Andrews and on that occasion Allen told McPherson to put a gun in his boot.
The three men went to four different bars in search of Andrews and eventually ended up at the Pink Panther Club in Eight Mile, Alabama, at 1:30 A.M. There a fight erupted between Andrews and Allen, and when it appeared that Andrews was getting the better of Allen, Allen called out to Stringer to "shoot". Stringer testified that he pulled a gun and told Andrews to stop beating Allen, Andrews broke off the fight with Allen, and Andrews began advancing on Stringer. Stringer said he warned Andrews three times to stop before he finally shot and killed Andrews. Other eyewitnesses testified, however, that Stringer shot Andrews when Allen told him to "shoot".
Allen claims that Stringer's firing was an independent act done in self-defense and, even assuming a conspiracy existed between the two men to kill Andrews if necessary to protect Allen, all hostilities between Allen and Andrews had ceased by the time Stringer shot Andrews. Thus, Allen insists the supposed conspiracy had ended and he was not responsible for Stringer's act done apart from the conspiracy.
Allen cites Hollingsworth v. State, 366 So.2d 326 (Ala.Cr.App.1978), cert. denied, 366 So.2d 333 (Ala.1979), and Howell v. State, 339 So.2d 138 (Ala.Cr.App.1976), for the proposition that an accomplice is criminally responsible only for those acts committed as a result of the conspiracy, but is not liable for the independent acts of a co-conspirator separate and apart from the conspiracy.
Initially, we note that the evidence of when Stringer shot Andrews was in dispute. Some eyewitnesses said the shot followed immediately upon Allen's command to Stringer to "shoot", while Stringer claimed to have given Andrews three warnings before firing in self-defense. When we view the evidence in the light most favorable to the State, as we are required to do, see Snider v. State, 406 So.2d 1008, 1012 (Ala.Cr.App.), cert. denied, 406 So.2d 1015 (Ala.1981), the State's case was more than sufficient to prove that Allen and Stringer set out to find and kill Andrews on the night in question, and that Andrews was in fact shot by Stringer following Allen's instruction.
Moreover, even if we accept the defendant's theory of the case, that Stringer shot Andrews not to protect Allen but to protect himself, we do not believe that Hollingsworth and Howell support defendant's contention that he is not liable for Stringer's conduct.
The accomplice is criminally responsible for acts which are the direct, proximate, natural result of the conspiracy or are a foreseeable consequence of the conspiracy.
Howell, 339 So.2d at 139 (emphasis added).
See also Hollingsworth, 366 So.2d at 332-33.
The facts that the defendant wanted to get even with Andrews, boasted that he could get Stringer to kill for him, went looking for Andrews, and told a companion to conceal a weapon the very night of the shooting make it entirely plausible that the killing of Andrews by Stringer was a "foreseeable consequence" of a plan to shoot Andrews in defense of Allen.
Finally, while the trial court gave a comprehensive charge on self-defense, the jury simply did not accept that testimony, and, upon review, we find abundant evidence to warrant their verdict. "Even though there was evidence to show self-defense, the jury was justified in concluding that some of the elements of self-defense were lacking." Burnett v. State, 380 So.2d 1021, 1022 (Ala.Cr.App.1980). Not only was the victim unarmed when he was shot, but Stringer could have retreated to a place of safety before resorting to deadly force.
Allen contends that the trial court erred in refusing the following written requested charge:
"The Court charges the jury that the burden of proof is not on the Defendant to establish self-defense by a preponderance of the evidence; but if all the evidence raises in the minds of the jury a reasonable doubt as to whether or not the Defendant acted in self-defense, you must find him not guilty."
There was no error in the refusal of the charge. The matter was "substantially and fairly given to the jury in the court's general charge or in charges given at the request of parties", Alabama Code § 12-16-13 (1975), as follows:
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