Biddie v. State, 6 Div. 179

• Decision Date: 12 November 1986
• Docket Number: 6 Div. 179
• Citation: 516 So.2d 837
• Parties: Grover Lewis BIDDIE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 837

516 So.2d 837

Grover Lewis BIDDIE v. STATE.

6 Div. 179.

Court of Criminal Appeals of Alabama.

Nov. 12, 1986.

As Modified on Denial of Rehearing

Jan. 13, 1987.

C. Burton Dunn, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Grover Lewis Biddie was charged in a one-count indictment with the intentional murder of Myrtie Bell Black. During the trial court's oral charge to the jury, the trial judge instructed the jury on the offense of "reckless murder" and on the offense of "intentional murder" even though the indictment contained only the charge of "intentional murder." The relevant portion of the court's oral charge is as follows:

"I know that this may not be easy to understand. I will ask you in a little while if you want me to go back over anything. Does anybody want anything said again up to this point? I'm down to the point where I will talk with you about murder.

"Mr. Davis told you a little bit about the history of the statutory change in our homicide statute, ladies and gentlemen. Homicide means the killing, the unlawful killing of a human being. There are occasions where people are killed excusably, or where it might be justified. We are talking about unlawful homicide. And we are talking about murder. Now, a person in Alabama--not talking about Mr. Biddie now, just hypothetically, but a person does commit the crime of murder, ladies and gentlemen, if either of the following happened. There are two routes to murder. Well, there are more than two. But there are only two possible routes to murder under these facts.

"A person commits the crime of murder under the first route if he intentionally causes the death of another person. In short, if he purposely causes the death of another person. And I'm going to give you another definition of intentionally in a little while. But the key word is 'intent.' He is guilty of murder if with the intent to cause the death of another person he so causes that person's death, or a person commits the crime of murder in this state if under circumstances manifesting extreme indifference to human life he recklessly engages in conduct which creates a grave risk of death to another person and thereby causes that person's death. So, to sustain a charge of murder in this case, the State, by the evidence, must prove beyond a reasonable doubt each of the following elements under the first route, the intentional route: First, the rather perfunctory question about whether or not Ms. Black is deceased. I don't think there is any question otherwise. But that's the threshhold finding that you must make. First, is Ms. Black dead. Secondly, you must find under the intentional route that Grover Lewis Biddie caused the lady's death, that she died as a result of his conduct or acts, that he strangled her, or that he committed a trauma to her neck, or that he killed her by other means. And finally, in committing these acts which caused the lady's death that Grover Lewis Biddie acted intentionally or purposely to cause her death. Or, under the second route, in order for the State to sustain the charge of murder under the second route, the State, by the evidence, must prove beyond a reasonable doubt these things: That the lady is dead, that the Defendant was the agent of her death, that he acted under circumstances manifesting extreme indifference to her life, that he acted recklessly as opposed to intentionally, you see. That he acted recklessly engaging in a course of conduct which created a grave risk of death to this lady, and which, in fact, did cause her death, and that this conduct denoted an extreme indifference to human life.

"Now, there are some special definitions here of intentionally and recklessly. And I will be honest with you, I don't really like them. I think they are hard to understand. But I'm going to give them to you. Intentionally is defined in this business as this: A person acts intentionally with respect to a result or to conduct prescribed or described by a statute defining an offense when his purpose is to cause that result or to engage in that conduct. I prefer to say that intentionally means to act with a purpose. But I feel like I ought to read that to you.

"Recklessly is defined as this: A person acts recklessly when he is aware or consciously disregards a substantial and unjustifiable risk that the results, death in this case, will occur. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the same situation.

"I would suggest that you might ask yourself these questions, now, in conclusion, in trying to address the issue in this case. First, is Ms. Myrtie Bell Black dead. If she's dead--and I don't mean to sound frivolous, but that has to be an assessment that you make--that if she's deceased, was Grover Lewis Biddie the agent of her death. Did his conduct lead to the lady's death. If she did die as a result of his acts, were his acts intentional, or done with the purpose of taking her life. If you are not satisfied beyond a reasonable doubt, or to a moral certainty that his acts were intentional or purposeful, although you might find he was the actor, then consider this, whether or not his acts were of a reckless nature as previously defined, and attended with circumstances denoting an extreme indifference to human life. If you are convinced that his acts were intentional to take life, or in the alternative that his acts were reckless attended with the circumstances we have discussed, denoting an extreme indifference to human life, then in either event you must convict. On the other hand, if you are not satisfied, even though you find that he might have been the agent of her death, if you are not satisfied either that his acts were intentional, or that his acts were of a reckless nature as defined, then you could not convict him." (R. 415-19.)

The jury found the appellant "guilty of murder" and he was sentenced to life imprisonment without parole as a habitual felony offender.

I

In Ex parte Washington, 448 So.2d 404 (Ala.1984), the Alabama Supreme Court condemned the giving of an oral instruction as "reckless murder" in a case in which the indictment only alleges "intentional murder." In Washington, supra, the defendant was indicted in a one-count indictment on the charge of "intentional murder." During the trial court's oral charge, the judge ¹ defined the term "recklessness" for the jury and instructed them that they could find the defendant guilty of murder if they concluded he acted "recklessly."

The Alabama Supreme Court in its opinion in Washington, supra, held that an oral charge on "reckless" or "universal malice murder" constitutes a fatal variance with an indictment which only charges "intentional murder." Such a variance amounts to reversible error because a "[d]efendant has a constitutional right to be informed of the charges against him" as guaranteed by the United States ² and ALABAMA CONSTITUTIONS. WASHINGTON, SUPRA, AT 408³.

Since the announcement of the decision in Washington, supra, this court has consistently followed the principles set out in Washington, supra, and has reversed convictions on the authority of that case. See Dawson v. State, 449 So.2d 800 (Ala.Cr.App.1984); Hughley v. State, 451 So.2d 439 (Ala.Cr.App.1984); Ponder v. State, 451 So.2d 1382 (Ala.Cr.App.1984); Bell v. State, 455 So.2d 1022 (Ala.Cr.App.1984). Thus, in light of the above authorities, it is clear that the court's oral charge in the case at bar was reversible error.

In Marsh v. State, 461 So.2d 51 (Ala.Cr.App.1984), this court declared that the rule of law set out in Washington, supra, was to be applied retroactively. Therefore, Washington, supra, applies to this case even though the trial of this case took place prior to the Supreme Court's decision in Washington, supra.

However, the question this court must decide is whether we can pass on the error involved in this case at all since defense counsel failed to object to the court's oral charge on "reckless murder" and has not raised this issue on this appeal. The lack of an objection to the court's oral charge seems to preclude our review of this issue according to our holding in Geter v. State, 468 So.2d 197 (Ala.Cr.App.1985).

In Geter, supra, the trial court instructed the jury on "universal malice murder" even though the indictment contained only the offense of "intentional murder." Although this court acknowledged the trial judge's charge in Geter, supra, constituted reversible error under Washington, supra, and that Washington, supra, was to be applied retroactively, we held that this error was not preserved for our review because defense counsel had not objected to the court's oral charge on "universal malice murder."

The decision in Geter, supra, is primarily based on Rule 14, A.Temp.R.Crim.P., which states in pertinent part:

"No party may assign as error the court's giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection."

However, our opinion in Geter, supra, failed to address Rule 45B, A.R.A.P., which seems to allow this court, under certain circumstances to reach an error in the trial court's instructions to the jury despite the lack of a proper objection by defense counsel to such improper instructions.

Prior to June 20, 1983, Rule 45B provided: "In all cases appealed to the Court of Criminal Appeals, except those in which the death penalty has been imposed, the Court of Criminal Appeals shall consider only questions or issues presented in briefs on appeal."

In Ex parte Hoppins, 451 So.2d 365 (Ala.1983), the Alabama Supreme Court clarified Rule 45B...