Ex parte Hannah
| Decision Date | 19 February 1988 |
| Citation | 527 So.2d 675 |
| Parties | Ex parte Lon Donald HANNAH. (Re Donald Hanna, alias * v. State of Alabama). 86-820. |
| Court | Alabama Supreme Court |
Richard A. Lawrence of Bowen, Carr & Lawrence, Montgomery, for petitioner.
Don Siegelman, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for respondent.
This is a certiorari review of an affirmance of a conviction of robbery in the first degree. (The conviction was affirmed without opinion, 507 So.2d 1068 (Ala.Cr.App.1987).) The petitioner, Hannah, was arrested, along with codefendant Dixon, for the armed robbery of a tavern named Bentley's in Montgomery, Alabama. Hannah was subsequently convicted of robbery in the first degree, while, in a separate trial, Dixon was determined to be not guilty on a charge of robbery in the first degree. Hannah and Dixon claim that they had agreed to bring the alleged victim of the robbery, Andrew Smith, the owner/manager of Bentley's, some stolen whiskey in return for money that Smith had given to Hannah and Dixon in advance. The two defendants claim that Smith signed warrants accusing them of robbery because they never returned with the whiskey.
Smith and the assistant manager of Bentley's testified that they had been robbed by Hannah and Dixon at gunpoint. Both Smith and the assistant manager claimed that Dixon held a gun on them while Hannah assisted in the taking of cash from Smith.
The petitioner raises two issues of merit in his petition for certiorari: 1) he claims it was error to allow the prosecutor to refer to him as a criminal in closing argument; and 2) he claims it was error for the trial court not to charge on the lesser offense of robbery in the second degree and on the lesser offense of theft.
During the closing argument, the prosecutor called Hannah a criminal. Hannah's lawyer objected:
While the prosecutor may comment in his closing argument on previous crimes committed by the defendant, for certain purposes, e.g., impeachment, an argument is inappropriate where it is made to appeal to a jury's not-so-unnatural belief that a person who has committed one or more previous transgressions is likely to commit another. Stephens v. State, 252 Ala. 183, 186, 40 So.2d 90 (1949). However, in the present case, we are unable to ascertain whether the prosecutor's statement was calculated to misappropriate the evidence of the petitioner's prior convictions, because the record before us does not contain the prosecutor's statement.
The petitioner contends that he was entitled to a charge on the lesser offense of robbery in the second degree. A crime is a lesser included offense where it is established by proof of the same facts, or fewer than all the facts, required to establish the commission of the offense charged. Code 1975, § 13A-1-9(a)(1). Where two persons commit an armed robbery, robbery in the second degree is a lesser included offense of robbery in the first degree. This is true because in the situation where two persons commit armed robbery, robbery in the second degree can be established by proof of fewer than all the facts required to establish robbery in the first degree. Therefore, we must determine whether the appellant was entitled to a charge on the lesser offense. Someone charged with a greater offense is not always entitled to a charge of a lesser included offense. Chavers v. State, 361 So.2d 1106, 1107 (Ala.1978), explains:
Id. See Code 1975, § 13A-1-9(b).
The trial court was not required to give a lesser-offense charge in the present case if there was no evidence tending to bring the offense within the definition of the lesser included offense. Lidge v. State, 419 So.2d 610 (Ala.Crim.App.), cert. denied, 419 So.2d 616 (Ala.1982), held that robbery in the second degree is a lesser included offense of robbery in the first degree when the "robber is aided by another person actually present and one participant is armed with a deadly weapon or dangerous instrument, or causes physical injury to another." Id. at 613. In Lidge, the Court of Criminal Appeals appears to indicate that where there is evidence that an armed robbery is committed by two or more persons and one person is unarmed, then the persons accused are necessarily entitled to a charge of robbery in the second degree. This is an incorrect interpretation of the law. A charge of second degree robbery does not always have to be given in such a situation. As the Chavers case holds, a court may properly refuse to charge on lesser included offenses when it is clear to the judicial mind "that there is no evidence tending to bring the offense within the definition of the lesser offense."
Under the evidence presented, the petitioner...
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