Breckenridge v. State

• Decision Date: 13 August 1993
• Docket Number: CR-91-1277
• Citation: 628 So.2d 1012
• Parties: Nancy BRECKENRIDGE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1012

628 So.2d 1012

Nancy BRECKENRIDGE v. STATE.

CR-91-1277.

Court of Criminal Appeals of Alabama.

Aug. 13, 1993.

Rehearing Denied Sept. 30, 1993.

Certiorari Denied Nov. 24, 1993

Alabama Supreme Court 1930031.

Chris S. Christ, Birmingham, for appellant.

James H. Evans, Atty. Gen., and Stephen Dodd, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

The appellant, Nancy Breckenridge, was indicted on November 8, 1991, in Jefferson County, for the capital offense of murder committed during a kidnapping in the first degree, in violation of § 13A-5-40(a)(1), Code of Alabama 1975. The indictment reads, in part, as follows:

"NANCY BRECKENRIDGE ... did intentionally cause the death of Pamellia Higginbotham by suffocating or strangling her with tape, a scarf, her hands or by means otherwise unknown, and NANCY BRECKENRIDGE ... caused said death during NANCY BRECKENRIDGE['S] ... abduction of, or attempt to abduct, Pamellia Higginbotham with intent to inflict physical injury upon her, in violation of Section 13A-5-40(a)(1) of the Alabama Criminal Code...."

At arraignment, on December 17, 1991, the appellant pleaded not guilty. On March 20, 1992, a jury found her guilty of the capital offense charged in the indictment. A sentencing hearing was held before the jury, in accordance with §§ 13A-5-43 through -46, and the jury returned an advisory verdict recommending by unanimous vote life imprisonment without the possibility of parole. Thereafter, the trial court held another sentencing hearing, in accordance with §§ 13A-5-47 through -52, and, after weighing the aggravating and mitigating circumstances and considering the jury's recommendation, the trial court sentenced Breckenridge to life imprisonment without the possibility of parole.

The state's evidence shows the following. In approximately 1980, Pamellia Higginbotham (hereinafter referred to as "the victim") married Ray Higginbotham. Three children were born of the marriage. In July 1990, they divorced, and the victim moved out of the family home, which was near Calera in Shelby County. Two of the children stayed with Ray, and the other child was placed with a relative in Mississippi. Ray had a son by a previous marriage, R.H., who at the time of the divorce was 17 years of age and resided in the family home. He remained with Ray when the parties divorced. Shortly after the divorce, Ray met the appellant. They saw each other frequently, and there was talk of marriage.

Then the victim moved back into the house with Ray. This caused problems between Ray and the appellant. The appellant did not want the victim living with Ray. The appellant persuaded R.H. and his 19-year-old friend, Eugene Brasher, to assist her in kidnapping the victim and in bringing the victim to her. She told them that she would leave a garbage bag beside a garbage dumpster at a certain location and that, in the garbage bag, they would find duct tape to bind the victim. R.H. and Brasher located the garbage bag containing the duct tape as the appellant said they would.

On December 16, 1990, R.H. and Brasher seized the victim in the Higginbotham home, bound and gagged her with the duct tape that had been furnished by the appellant, put her in Brasher's automobile, and delivered her to the appellant at a prearranged site in a rural area near Calera in Shelby County. When R.H. and Brasher arrived with the victim, the appellant used a syringe to inject an unidentified substance ¹ into the victim's arm and neck. She then began strangling the victim, using her hands and then a red scarf. Having difficulty, the appellant asked Brasher to assist her. Brasher claimed that he refused; however, R.H. testified that he saw both Brasher and the appellant choking the victim. Brasher then placed the victim in the trunk of the appellant's automobile, along with her shoes, her purse, and the garbage bag, and the appellant drove away.

On January 15, 1991, the body of the victim was discovered in an isolated rural area of Jefferson County. An autopsy revealed that the victim died either from asphyxiation or strangulation.

R.H. and Brasher confessed to their part in the crime and testified at trial against the appellant. ² However, the appellant, in her testimony, denied any part in the commission of the crime. She attempted to place the blame on R.H. and Brasher by testifying that, on the day of the victim's disappearance, as she was traveling from Calera to Birmingham, she observed Brasher's car parked on an exit ramp of the interstate highway. She testified that she stopped, thinking that they had car trouble, and that they showed her the beaten, bound, and gagged victim lying in the back of Brasher's automobile. She stated that R.H. and Brasher asked her to help them and that she refused and drove away toward Birmingham.

The appellant raises five issues on appeal.

I.

The appellant first contends that the trial court erred in denying her motion to quash the indictment. She argues that the indictment was vague and ambiguous and that it failed to properly apprise her of the charges against her.

Rule 13.2(a), A.R.Cr.P., provides:

"The indictment or information shall be a plain, concise statement of the charge in ordinary language sufficiently definite to inform a defendant of common understanding of the offense charged and with that degree of certainty which will enable the court, upon conviction, to pronounce the proper judgment."

Rule 13.2(a) mirrors the requirement of § 15-8-25, Code of Alabama 1975. An indictment is sufficient if it substantially follows the language of the statute violated, provided the statute prescribes with definitiveness the elements of the offense. Ex parte Allred, 393 So.2d 1030 (Ala.1981). An indictment must allege all the elements of the offense charged and must also sufficiently apprise the accused of what he or she must be prepared to defend against. Hewlett v. State, 520 So.2d 200 (Ala.Cr.App.1987), cert. denied, 520 So.2d 200 (Ala.1987).

In this case, the indictment is clear, concise, and understandable. It charges murder of the victim by the defendant during a kidnapping in the first degree. The essential elements of the capital offense are averred in the indictment, and the indictment parallels the language of § 13A-5-40(a)(1). It states sufficient facts to enable the appellant to understand the nature of the crime charged and the particular acts against which she would have to be prepared to defend.

The appellant seems to contend that, because, she says, only a murder charge was presented to the grand jury, her prosecution under an indictment charging murder occurring during a kidnapping was a denial of due process. We consider her underlying premise--that only a murder charge was presented to the grand jury--to be faulty. She cites Talley v. City of Clanton, 495 So.2d 1165 (Ala.Cr.App.1986), as authority for her contention. The appellant was initially charged with murder when she was arrested; however, as the record clearly shows, the grand jury returned a true bill against the appellant for the capital offense of murder committed during the course of a kidnapping. It is apparent from the face of the indictment that the grand jury had evidence before it to support this indictment. An indictment should be sufficiently specific to identify the accusation or charge in order that the accused not be tried for an offense different from that intended by the grand jury. Gayden v. State, 38 Ala.App. 39, 80 So.2d 495 (1954). Here, the indictment is sufficiently specific to identify the murder-kidnapping capital offense as the crime intended by the grand jury to be charged.

We find that the indictment in the instant case was sufficient, and, therefore, we hold that the trial court correctly denied the appellant's motion to quash the indictment.

II.

The appellant next contends that the trial court erred in failing to charge the jury on the lesser included offenses of manslaughter and kidnapping in the first and second degrees. The issue was properly preserved for review by timely objection. The trial court refused to charge the jury, as requested, on the ground that there was no rational basis in the evidence presented to support such instructions. The trial court correctly instructed the jury on the elements of the capital offense charged in the indictment, i.e., murder committed by the defendant during a kidnapping in the first degree, § 13A-5-40(a)(1), which included the elements of the component crimes of the charge, i.e., murder, § 13A-6-2(a)(1), and kidnapping in the first degree, § 13A-6-43(a)(4). The trial court also instructed the jury on one lesser included offense, i.e., felony murder, § 13A-6-2(a)(3).

A defendant accused of a greater offense is entitled to have the trial court charge on any lesser included offense if there is any reasonable theory from the evidence to support the lesser charge, regardless of whether the state or the defendant offers the evidence. Ex parte Pruitt, 457 So.2d 456 (Ala.1984); Parker v. State, 581 So.2d 1211 (Ala.Cr.App.1990), cert. denied, 581 So.2d 1216 (Ala.1991). A court may properly refuse to charge on a lesser included offense only when (1) it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) the requested charge would have a tendency to mislead or confuse the jury. Anderson v. State, 507 So.2d 580 (Ala.Cr.App.1987). " '[E]very accused is entitled to have charges given which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility.' " Ex parte Stork, 475 So.2d 623, 625 (Ala.1985) (quoting Ex parte Chavers, 361 So.2d 1106, 1107 (Ala.1978). Section 13A-1-9(b) provides, "The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included...