Chestang v. State

• Decision Date: 28 September 2001
• Citation: 837 So.2d 867
• Parties: Vernon M. CHESTANG v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

837 So.2d 867

Vernon M. CHESTANG v.STATE of Alabama.

CR-00-0130.

Court of Criminal Appeals of Alabama.

September 28, 2001.

Rehearing Denied November 21, 2001.

Certiorari Denied May 31, 2002.

Dennis K. Knizley, Mobile; and Louis Daniel Mims, Mobile, for appellant.

Bill Pryor, atty. gen., and E. Vincent Carroll, deputy atty. gen., for appellee.

Alabama Supreme Court 1010517.

On Return to Remand

SHAW, Judge.

The appellant, Vernon M. Chestang, was indicted for intentional murder, a violation of § 13A-6-2(a)(1),Ala.Code 1975.A jury found him guilty of the lesser-included offense of reckless manslaughter, see§ 13A-6-3(a)(1),Ala.Code 1975.The appellant was sentenced to 20 years' imprisonment.We reverse and remand.¹

I.

The appellant contends that the trial court erred in denying his motion for a judgment of acquittal made at the close of the State's case because, he says, "the State had failed to prove each and every material allegation of the indictment and further, that a reasonable jury could not reasonably conclude the State had proved beyond a reasonable doubt that he had not acted in self-defense."(Appellant's briefat p. 16.)The appellant specifically argues that the State's evidence failed to prove a prima facie case of murder and, therefore, that his conviction should be reversed and a judgment rendered in his favor.We hasten to point out, however, that the appellant was not convicted of murder.Although the indictment charged him with murder, the jury found the appellant guilty of the lesser-included offense of reckless manslaughter.Therefore, manslaughter is the only charge subject to appellate review.See, e.g., McCain v. State,611 So.2d 1123, 1124(Ala.Crim.App.1992)("The charge upon which the conviction rests is the only charge that is subject to appellate review.").See alsoWilliams v. State,695 So.2d 644(Ala.Crim.App.1996);andGagliardi v. State,695 So.2d 206(Ala. Crim.App.1996).The appellant does not argue on appeal the sufficiency of the evidence to sustain his conviction for manslaughter; therefore, there is nothing for this Court to review.²However, even assuming, arguendo, that the sufficiency issue were before this Court for review, we would decide it adversely to the appellant.

"`In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.'"Ballenger v. State,720 So.2d 1033, 1034(Ala. Crim.App.1998), quotingFaircloth v. State,471 So.2d 485, 488(Ala.Crim.App.1984), aff'd, 471 So.2d 493(Ala.1985)."`The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.'"Nunn v. State,697 So.2d 497, 498(Ala. Crim.App.1997), quotingO'Neal v. State,602 So.2d 462, 464(Ala.Crim.App.1992)."`When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and in such a case, this court will not disturb the trial court's decision.'"Farrior v. State,728 So.2d 691, 696(Ala.Crim.App.1998), quotingWard v. State,557 So.2d 848, 850(Ala.Crim.App.1990)."The role of appellate courts is not to say what the facts are.Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury."Ex parte Bankston,358 So.2d 1040, 1042(Ala.1978).(Emphasis inBankston.)

The evidence adduced at trial showed that Donald Eckoff, Sr., died on August 7, 1999, as a result of a gunshot wound to the heart, which he sustained during an argument with the appellant.The State presented evidence indicating that earlier that same evening, Eckoff and the appellant had exchanged insulting gestures and had engaged in a verbal altercation as the appellant left his driveway and passed Eckoff's home.The appellant and Eckoff had been neighbors for approximately two years.From the date Eckoff had purchased the property he lived on from the appellant's ex-wife, the two men had a history of trading insults and obscene gestures.Testimony revealed that Eckoff also had a similar history with other neighbors.

On August 7, 1999, after the appellant returned home, he and Eckoff, who was outside securing his vehicle and putting away a garden hose, again engaged in verbal sparring.Although there were no eyewitnesses to this second argument, there is no dispute that during this argument, the appellant shot and killed Eckoff.

After he shot Eckoff, the appellant telephoned emergency 911, summoning police and medical assistance.A .22 caliber revolver was found on a couch in the living room of the appellant's home.The appellant asserted that Eckoff had charged him while Eckoff was reaching into his pocket.He claimed that he shot Eckoff in self-defense.It was later determined that Eckoff was unarmed during the confrontation that led to his death.

Officer Armond Campbell of the Mobile Police Department responded to the incident.He testified that he was dispatched in response to a complaint by a person who stated that he had shot his neighbor.According to Officer Campbell, when he arrived at the scene, he saw Eckoff lying in the yard, and was told by a neighbor that the appellant was inside his home.He stated that the appellant gave a statement in which he admitted "that he had shot his neighbor and that his neighbor was always messing with him."(R. 336.)Officer Campbell testified that the appellant informed him that Eckoff had "charged" and had reached into his pocket, and that he believed that Eckoff was going to pull a gun.(R. 339, 342.)Officer Campbell also testified that the appellant stated that he had called the police as a result of Eckoff's behavior on at least four occasions, and that Eckoff had previously threatened him with a weapon.According to Officer Campbell, the appellant indicated that he had not intended to kill Eckoff, and "that he hoped the guy was all right."(R. 339-40.)

Section 13A-6-3(a)(1),Ala.Code 1975, provides, in pertinent part, that "[a] person commits the crime of manslaughter if ... [h]e recklessly causes the death of another person....""A person acts recklessly with respect to a result or to a circumstance ... when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists."§ 13A-2-2,Ala.Code 1975.

There is no dispute that the appellant caused Eckoff's death.Based on the evidence presented at trial, the jury could have reasonably concluded that the appellant recklessly caused Eckoff's death by firing at him with a pistol.Although the appellant claimed that he acted because he believed Eckoff was reaching for a weapon, the evidence at trial revealed that Eckoff was, in fact, unarmed.In most cases, the issue of self-defense is one of ultimate fact for determination by the jury.King v. State,478 So.2d 318(Ala.Crim.App.1985)."`Where, as here, the killing was admitted, the question of whether or not it was justified under the theory of self-defense was a question for the jury.'"Quinlivan v. State,627 So.2d 1082, 1087(Ala.Crim.App.1992), quotingTownsend v. State,402 So.2d 1097, 1098(Ala.Crim.App.1981).

Moreover, we note that any "inconsistencies and contradictions in the State's evidence, as well as [any] conflict between the State's evidence and that offered by the appellant, [goes] to the weight of the evidence and [creates a question] of fact to be resolved by the jury."Rowell v. State,647 So.2d 67, 69-70(Ala.Crim.App.1994)."`"[T]he credibility of witnesses and the weight or probative force of testimony is for the [trier of fact] to judge and determine."'"Johnson v. State,555 So.2d 818, 820(Ala.Crim.App.1989), rev'd on other grounds, 576 So.2d 1281(Ala.1991), quotingHarris v. State,513 So.2d 79, 81(Ala.Crim.App.1987), quoting, in turn, Byrd v. State,24 Ala.App. 451, 136 So. 431(1931)."We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial."Johnson,555 So.2d at 820.Furthermore, "`[t]his Court must view the evidence in the light most favorable to the State, and "draw all reasonable inferences and resolve all credibility choices in favor of the trier of fact."'"D.L. v. State,625 So.2d 1201, 1204, (Ala.Crim.App.1993), quotingWoodberry v. State,497 So.2d 587, 590(Ala.Crim.App.1986).

We conclude that the evidence was sufficient to submit the reckless manslaughter charge to the jury.The evidence, if believed by the jury, could reasonably support a finding that the appellant recklessly caused Eckoff's death, seeJohnson v. State,571 So.2d 375, 377(Ala.Crim.App.1990), cert. denied, 596 So.2d 656(Ala.1991), and it was sufficient to refute the appellant's claim of self-defense and to warrant sending the issue to the jury.Therefore, the trial court did not err in denying the appellant's motion for a judgment of acquittal.

II.

The appellant also argues that the trial court failed to adequately charge the jury on self-defense and, therefore, that he is entitled to a new trial.Specifically, he argues that the trial court erred in denying his written requested jury instruction number 19, which read as follows:

"While threats alone will not serve as a justification for homicide, if the jury believes from the evidence that the deceased, at the time [of] the homicide was manifesting an intention to carry such threats into execution, by a positive act then done or, that from the acts of the deceased at the time of the homicide, it would have appeared to a reasonable mind, under the circumstances, that the deceased was attempting to execute the threats

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