Barnett v. State
Decision Date | 25 February 2000 |
Citation | 783 So.2d 927 |
Parties | Andrae BARNETT v. STATE. |
Court | Alabama Court of Criminal Appeals |
M. Mark Majors, Montgomery, for appellant.
Bill Pryor, atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.
Alabama Supreme Court 1991842.
The appellant, Andrae Barnett, was indicted and convicted of felony murder, a violation of § 13A-6-2(a)(3), Ala.Code 1975. Barnett was sentenced to 50 years in the state penitentiary. Barnett was also ordered to pay $250 to the victim's compensation fund, restitution in the amount of $659.90, and court costs.
On the afternoon of October 17, 1998, Morris Givens and his brother Andrae Barnett went to Daphne Golson's house to pick up Givens's three-year old daughter Jamari and take her to the fair. Daphne Golson is Jamari's mother and Givens's former girlfriend. Golson, her mother, her daughter Jamari, and her boyfriend Kevon Moses were at the home when Givens and Barnett arrived.
After their arrival, Givens and Golson argued over how their daughter was dressed. Because of this dispute, Givens decided not to take the child to the fair. As he began to leave Golson's home, Givens asked Kevon Moses if he could talk to him. Moses agreed and followed Givens and Barnett outside into the front yard. Shortly thereafter, Moses began shouting for Golson to come outside; Moses was holding a garden hoe. Moses asked Golson to watch Barnett and to keep him out of an impending fight between Moses and Givens. Moses then put the garden hoe down and the fight between him and Givens began.
Golson stepped off the porch and stopped the fight. She then began to argue with Givens. While Golson and Givens were arguing, a separate altercation began between Moses and Barnett. Golson heard a noise behind her and turned; Barnett was holding a garden hoe. According to Golson, Barnett had the hoe in his hands and Moses was backing away from Barnett. As he backed away, Moses tripped over Givens's feet, fell on his stomach, and was hit in the back of the head with the hoe by Barnett. Moses died as a result of the blow to the head. Subsequently, Barnett was arrested and indicted on the charge of felony murder.
On appeal, Barnett asserts that the trial court erred by allowing him to be charged with felony murder when the underlying felony was assault, because he argues, assault was an essential part of the homicide itself. The State argues that this issue has not been properly preserved for review. However, this issue raises the question whether there is a jurisdictional defect in the indictment. This Court can review a jurisdictional issue at any time, even if the issue is not raised by the appellant. See Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987); Cole v. State, 435 So.2d 231, 233 (Ala.Cr.App.1983).
See § 13A-6-2(a)(3), Ala.Code 1975. Assault in the first degree is defined at § 13A-6-20(a)(1), Ala.Code 1975:
In People v. Ireland, 70 Cal.2d 522, 450 P.2d 580, 75 Cal.Rptr. 188 (Cal.1969), the Supreme Court of California addressed whether assault with a deadly weapon could constitute the predicate felony for a felony-murder charge. The appellant in Ireland shot and killed his wife. During the trial, the trial court instructed the jury that it could convict Ireland of felony murder if it determined that he committed the underlying felony of assault with a deadly weapon. Id. In discussing this issue, the Supreme Court of California stated:
70 Cal.2d at 529,450 P.2d at 590,75 Cal. Rptr. at 198. Other jurisdictions have construed their felony-murder laws in a similar manner, and have held that felonious assault merges into the homicide. See e.g. State v. Essman, 98 Ariz. 228, 403 P.2d 540 (1965) ( ); Sullinger v. State, 675 P.2d 472, 473 (Okla.Crim.App.1984) ( ); State v. Hanes, 729 S.W.2d 612 (Mo.Ct. App.1987) ( ). See also W. Lafave & A. Scott, Jr., Criminal Law § 7.5 at 638 (1986) ( ).
Conceived in the nineteenth century, the merger doctrine bars the use of the felony-murder rule when the underlying felony directly results in, or is an integral part of, the homicide. See State v. Strauch, 239 Kan. 203, 718 P.2d 613 (1986), and Note, The Merger Doctrine as a Limitation on the Felony-Murder Rule: A Balance of Criminal Law Principles, 13 Wake Forest L.Rev. 369, 377 (1977). Thus, under the merger doctrine, the elements of the underlying felony...
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