Collins v. State

• Decision Date: 28 April 1987
• Docket Number: 8 Div. 61
• Citation: 508 So.2d 295
• Parties: Jackie COLLINS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 295

508 So.2d 295

Jackie COLLINS v. STATE.

8 Div. 61.

Court of Criminal Appeals of Alabama.

April 28, 1987.

Rehearing Denied May 26, 1987.

Steven E. Haddock of Hardwick, Knight & Haddock, Decatur, for appellant.

Charles A. Graddick, Atty. Gen., and Cecil G. Brendle, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Jackie Collins was indicted on two counts of kidnapping in violation of § 13A-6-44, Code of Alabama 1975, two counts of attempted murder in violation of § 13A-4-2, Code of Alabama 1975 and one count of robbery in violation of § 13A-8-41, Code of Alabama 1975. On the State's motion pursuant to Rule 15.4(b), A. Temp.R.Crim.P., the trial court consolidated for trial all of the indictments of this appellant and the separate indictments of Susan Brown Collins (CC 83-295) and Francis Mondell, Jr. (CC 83-0385). Susan Collins, the appellant's wife during the time in question, was charged with kidnapping and Francis Mondell, Jr. was charged with two counts each of kidnapping, attempted murder and conspiracy to commit murder.

Prior to trial, the case of Susan Collins was severed from the trial of appellant and Mondell. The appellant and Mondell were tried jointly. The jury acquitted Mondell of all charges and found the appellant guilty of the two counts of kidnapping, robbery in the first degree and two counts of first degree assault as lesser included offenses of the attempted murder charges. He was sentenced to 10 years' imprisonment under each kidnapping count, 20 years' imprisonment for the assault of Mrs. Mondell and 30 years' for robbery, the sentences at issue to run consecutively.

The evidence presented by the State tended to show that the appellant was in jail in Hartselle, Alabama when he first met Francis Mondell, Jr. Mondell had been placed in jail following his arrest in connection with his abduction of two of his children from his estranged wife approximately one month earlier.

Mondell and his wife, Deborah, had been having marital difficulties. Deborah left their home in Marion, South Carolina on February 20, 1983 and took their three small children to live with her sister and brother-in-law (Ann Murray and William "Donnie" Murray) in Hartselle, Alabama. A few days later Mondell traveled to Hartselle from South Carolina and took two of the children (Michael and Bryan) back to South Carolina with him.

On March 17, 1983, Mondell drove to Hartselle with the children after receiving his wife's assurances of reconciliation. Soon after he arrived at the Murray's residence he was arrested and charged with menacing. Mondell was placed in a cell next to the appellant in the Hartselle jail.

While the two were in jail, they entered into an agreement whereby the appellant would take the two children from the Murray's home in Hartselle and deliver them to Mondell after they both had been released from jail.

Both the appellant and Mondell testified during trial. Each gave different versions of the events leading up to the incident upon which the charges were based.

Mondell testified that he had discussed his family problems with this appellant and the appellant had complained that he was recently married, had no money and was unable to pay his $75.00 fine to get out of jail. Mondell claimed that he gave the appellant $80.00 so that he could get out of jail because he felt sorry for him.

Before the appellant was released on March 18, he asked Mondell if he could do anything for him. Mondell claimed that he said "no" and then the appellant suggested that he would get Mondell's children for him. Mondell claimed there was no discussion of payment and that the appellant agreed to get the children "as a favor". According to Mondell, he warned the appellant to stay out of the Murray's home, not to hurt anyone and to take the children only if he could get them out of the yard without anyone seeing him. At first, Mondell told the appellant to deliver the children to him at a motel in Hartselle. Following his release later that day, however, Mondell returned to South Carolina.

The next day (March 19) Mondell, the appellant and his wife, Susan, had numerous discussions long distance, via telephone concerning the agreement. The next day, (March 20), according to Mondell, he called the appellant and told him to "forget it". The appellant volunteered to return the $80.00 and Mondell told him that repayment was unnecessary.

Mondell testified that he received a call from one of the Murray's neighbors at approximately 10:00 that night. The neighbor informed him that his sons were gone and that Mrs. Mondell and Donnie Murray had been shot. Shortly thereafter, Mondell called the Hartselle Police Department and denied knowing anything about what had happened.

The appellant then called Mondell at approximately 2:00 p.m. and offered to deliver the children to him at the Georgia-Alabama border. The appellant's wife told Mondell that she and the appellant needed over $160.00 to deliver the children. Mondell testified that he became frightened and he and his family eventually came up with $520.00. They finally agreed that the appellant would deliver the children to Mondell in Florence, South Carolina, since Mondell stated that he was being watched by the police.

At approximately 7:30 a.m. Mondell received a phone call from the appellant's wife informing him that they had arrived in Florence. Mondell met them there and found the children in good condition. He testified that he paid the appellant $500.00, but that the appellant's wife said that they would be contacting him for more money.

The appellant testified that Mondell initiated the discussion as to whether the appellant could get his children for him. Mondell asked the appellant how much it would cost and the appellant told him "$500.00". Mondell then agreed upon the price. According to the appellant, Mondell told him to do whatever was necessary to get the children, even if it meant killing the three adults. The appellant claimed that Mondell later changed his mind and instructed the appellant to only hurt his (Mondell's) wife.

The appellant claimed that Mondell never called the deal off and repeatedly urged him to hurry with the plans. The appellant claimed that Mondell threatened to "hire a professional" if he did not act soon.

The appellant testified that early Sunday evening (March 20) he and his wife went to the Murray's home. Susan went inside to see who was there, claiming that she needed to use the phone. The appellant stated that he had consumed a large quantity of whiskey, smoked marijuana and taken qualudes and speed earlier in the day.

Susan and the appellant left the Murray's home and then returned approximately 30 minutes later. They both went inside the house. Susan cut the phone lines and gathered up the two boys and some of their clothes. The appellant instructed the three adults to lie down on the floor and held a .22 caliber revolver on them. After Susan left with the children, the appellant turned the lights off, turned up the volume on the television and fired six shots at random in the direction of the adults. The appellant claimed he was only trying to scare them and did not realize until later that he had hit Mrs. Mondell and Donnie Murray.

During the police investigation, the appellant signed a written statement in which he admitted to having aimed the gun at the heads of the victims in an attempt to kill them so that there would be no witnesses.

The three adults testified that the appellant had forced them to lie on the floor at gunpoint. They then heard someone turn up the volume on the television set. They then heard the sound of gunshots. Mrs. Murray sustained no injury. Deborah Mondell felt something hit her head and Donnie Murray felt the first shot graze his head.

When the paramedics arrived they found Mrs. Mondell with a blood-soaked towel wrapped around her head, lying on a couch. She was conscious and had normal vital signs. She sustained entry and exit wounds to her scalp. The examining physician in the emergency room testified that Mrs. Mondell had "some soft tissue swelling" in the area and a lot of blood under the scalp. She suffered no internal injuries and was discharged from the hospital after the wound was treated. She received no stitches and surgery was not required.

Donnie Murray testified that, after the bullet grazed his head, he "knew [he] wasn't hurt too bad." The ambulance attendant stated that Murray suffered an abrasion across the top of his head approximately an inch or an inch and a half long. Murray did not seek medical treatment that night. The following day he received a tetanus shot.

I

The appellant contends that the trial court erred in refusing his requested jury instructions on second and third degree assault as lesser included offenses of first degree assault. He argues that the evidence showed that neither Murray nor Mrs. Mondell sustained a "serious physical injury" within the meaning of § 13A-1-2(9), Code of Alabama 1975. He contends that their injuries instead fell within the definition of "physical injury" as used in § 13A-6-21(a)(2) (second degree assault) and, therefore, the charge should have been given.

The record reveals that the appellant did not properly preserve this issue for our review since he failed to object to the trial judge's refusal before the jury retired to deliberate. Allen v. State, 414 So.2d 989 (Ala.Crim.App.1981), aff'd, 414 So.2d 993 (Ala.1982).

The record shows that the appellant waited until immediately after the jury retired to object and present his grounds. (R. 1064, 1067-68). Even had this issue been properly preserved, we would find the appellant's contentions to be without merit.

"As a general rule the trial court is not required to give a jury charge on a lesser included offense unless, in its discretion, it concludes that the evidence presented would support the charge. Absent an abuse of that discretion, this court will not disturb a...