Ex parte Jordan

• Decision Date: 10 January 1986
• Parties: Ex Parte: Larry Joe JORDAN. (Re: Larry Joe Jordan v. State). 84-621.
• Court: Alabama Supreme Court

Page 485

486 So.2d 485

Ex Parte: Larry Joe JORDAN (Re: Larry Joe Jordan v. State).

84-621.

Supreme Court of Alabama.

Jan. 10, 1986.

On Rehearing March 7, 1986.

Rehearing Denied March 31, 1986.

Roger C. Appell, Birmingham, for petitioner.

Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for respondent.

PER CURIAM.

On October 22, 1982, at about 7:00 p.m., Larry Joe Jordan went to the house of Daniel Moro, where he allegedly drank two beers. Jordan and Moro then drove in Jordan's Jeep to a package goods store, and Moro testified that on the way Jordan ran two vehicles off the road. At the store, Jordan purchased a bottle of tequila, which he opened and drank from on the way back. Moro testified that on the return to his house Jordan continued his erratic behavior, driving his Jeep in the wrong lane. Moro further stated that he took the steering wheel and eased the Jeep back into the proper lane. While looking angrily at Moro, Jordan jerked the steering wheel back, causing the Jeep to re-enter the other lane of traffic and collide with an approaching car driven by John Odum. Odum was killed.

The grand jury returned an indictment charging Jordan with murder. The text of the indictment reads:

"The grand jury of said county charge that, before the finding of this indictment, LARRY JOE JORDAN, whose name is to the Grand Jury otherwise unknown, did recklessly engage in conduct which manifested extreme indifference to human life and created a grave risk of death to a person other than the said Larry Joe Jordan, and did thereby cause the death of John Howard Odom ¹ by operating a motor vehicle under the influence of alcohol and did thereby cause the death of John Howard Odom by striking the vehicle which John Howard Odom was operating, in violation of Section 13A-6-2 of the Alabama Criminal Code,

"2nd: The Grand Jury of said county further charge that, before the finding of this indictment, LARRY JOE JORDAN, whose name is to the Grand Jury otherwise unknown, did intentionally cause the death of another person, John Howard Odom, by operating a motor vehicle under the influence of alcohol and did thereby cause the death of John Howard Odom by striking the vehicle which John Howard Odom was operating, in violation of Section 13A-6-2 of the Alabama Criminal Code."

At trial, Jordan requested a jury instruction that vehicular homicide was a lesser included offense of murder. The trial court denied the request. Jordan was convicted in the Circuit Court of Jefferson County under Count I of the murder indictment and was sentenced to forty years in the penitentiary. The Court of Criminal Appeals affirmed the conviction, 486 So.2d 482, and Jordan petitioned this Court for a writ of certiorari, which we granted. We reverse the judgment and remand for further proceedings.

The only issue before this Court is whether the Court of Criminal Appeals erred in not reversing the trial court for its refusal to charge the jury that homicide by vehicle, § 32-5A-192, was a lesser included offense of murder.

The murder statute reads, in pertinent part:

"(a) A person commits the crime of murder if:

"....

"(2) Under circumstances manifesting extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to a person other than himself, and thereby causes the death of another person...."

Code 1975, § 13A-6-2(a). The vehicular homicide statute provides:

"(a) Whoever shall unlawfully and unintentionally cause the death of another person while engaged in the violation of any state law or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic shall be guilty of homicide when such violation is the proximate cause of said death."

Code 1975, § 32-5A-192(a). For vehicular homicide to be classified as a lesser included offense of murder, the offense must meet the definitional requirements of Code 1975, § 13A-1-9, which states, in pertinent part:

"(a) A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:

"(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or

"....

"(4) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission.

"(b) 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 offense. (Acts 1977, No. 607, p. 812, § 126.)"

Code 1975, § 13A-1-9.

The Court of Criminal Appeals relied principally on WHIRLEY V. STATE, 481 SO.2D 1151 (ALA.CRIM.APP.1985)², cert. quashed, Ex parte State, 481 So.2d 1154 (Ala.1986). The Court of Criminal Appeals held in Whirley that vehicular homicide was not a lesser included offense of murder because the offense failed to meet the requirements of § 13A-1-9. Discussing subsection (1), the Court of Criminal Appeals specifically noted that the use of a vehicle is a required element of proof for vehicular homicide, but not for murder under § 13A-6-2. Whirley v. State, supra, at 1154. In regard to subsection (4), that court stated:

"[A]lthough homicide by vehicle requires a 'lesser kind of culpability' than murder under § 13A-6-2(a)(2), it does not differ from the offense of murder only in that respect. See § 13A-1-9(4).... [W]e conclude that homicide by vehicle 'require[s] something more.' Washington [v. State] [Ala.], 448 So.2d at 408 [ (1984) ]. The additional difference between the offense of murder ... and the offense of homicide by vehicle ... is the requirement of the latter crime that the 'murder weapon' be a vehicle. 'This additional difference ... precludes the latter from being an included offense, since it can be established only by a showing of facts not required in order to be convicted of ... murder under § 13A-6- Whirley v. State, supra, at 1154.

2(a).' Washington, 448 So.2d at 408." (Emphasis in original.)

Essentially, the decision below stands for the proposition that a set of facts establishing the commission of murder can never also establish the commission of vehicular homicide. The error in this approach is that the court creates a broad rule which fails to take into account the facts of each case. The court considers the potential relationship of the murder and vehicular homicide statutes only in abstract terms and completely ignores the facts of this case and the indictment under which Jordan was charged. We find this application of § 13A-1-9 to these statutes and facts erroneous.

Under the proper application of subsection (1) of the lesser-included-offense statute to these criminal statutes, the issue is simple: Can all or fewer than all of these facts establishing the commission of murder also establish the commission of vehicular homicide? In the present case, they conceivably can. According to the language of the indictment and the jury's subsequent conviction thereunder, Jordan "did recklessly engage in conduct which manifested extreme indifference to human life and created a grave risk of death ... and did thereby cause the death of John Howard Odom by operating a motor vehicle under the influence of alcohol ... [and] striking the vehicle which John Howard Odom was operating...." Some of these very same facts could establish the commission of vehicular homicide. Jordan operated a vehicle in a manner violating motor vehicle traffic laws, specifically, DUI laws. His driving proximately caused Odum's death.

Under the proper application of subsection (4), the issue is whether the two criminal statutes differ under these facts only in that vehicular homicide contemplates a less serious injury or risk of injury or requires a lesser kind of culpability. As the court correctly noted, vehicular homicide does require a lesser kind of culpability. Reckless conduct creating a "grave risk of death" and "manifesting extreme indifference to human life" does encompass conduct in violation of motor vehicle laws which unintentionally but proximately causes another's death.

Therefore, under the facts of this case, vehicular homicide is a lesser included offense of murder by way of application of either subsections (1) or (4) of Code 1975, § 13A-1-9. Consequently, Jordan was entitled to this additional jury charge.

REVERSED AND REMANDED.

TORBERT, C.J., and FAULKNER, JONES, ALMON, SHORES, BEATTY, ADAMS ³ and HOUSTON, JJ., concur.

MADDOX, J., not sitting.

ON APPLICATION FOR REHEARING

In its application for rehearing, the State contends, for the first time, that the trial court's refusal to charge the jury on vehicular homicide was harmless error. We acknowledge that ordinarily we do not consider issues raised for the first time on rehearing. This case presents an example of the few exceptions to this rule. On original submission, the State argued only that it was not error to refuse the requested charge on vehicular homicide, basing its position on its argument that vehicular homicide can never be a lesser included offense under a charge of murder. It was only after this Court held otherwise on original...