Ex parte Long

• Decision Date: 24 April 1992
• Citation: 600 So.2d 982
• Parties: Ex parte Randall Blake LONG. (Re Randall Blake Long v. State). 1901368.
• Court: Alabama Supreme Court

Page 982

600 So.2d 982

Ex parte Randall Blake LONG.

(Re Randall Blake Long v. State).

1901368.

Supreme Court of Alabama.

April 24, 1992.

Leo E. Costello of Costello, Stott & Grayson, Birmingham, for petitioner.

James H. Evans, Atty. Gen., and Andy S. Poole, Asst. Atty. Gen., for respondent.

ALMON, Justice.

We granted Randall Blake Long's petition for a writ of certiorari to determine whether the Court of Criminal Appeals' judgment, affirming Long's conviction despite the trial court's denial of Long's request to instruct the jury on homicide by vehicle, conflicts with our opinion in Ex parte Jordan, 486 So.2d 485 (Ala.1986). The petition also presents the question of whether the affirmance by the Court of Criminal Appeals conflicts with prior decisions by that court in failing to hold that the admission into evidence of a "mug shot" of Long constituted reversible error.

The grand jury indicted Long for "intentionally caus[ing] the death of another person Arthur Simmons by running over him with an automobile, in violation of Section 13A-6-2," Ala.Code 1975. After the evidence was presented at trial, Long requested a charge on homicide by vehicle under § 32-5A-192, Ala.Code 1975, arguing that it was a lesser included offense of murder. The trial judge denied that request and charged the jury on intentional murder, manslaughter, and criminally negligent homicide. The jury found Long guilty of manslaughter, and he was sentenced to 18 years in the State penitentiary. ¹

The facts, briefly stated, are as follows: On July 20, 1989, Long drove to a Birmingham residential area in an attempt to buy cocaine. He picked up a man named Reginald and they drove around in Long's car, but were unable to find any cocaine. Another man, Simmons, approached the car and told Long that he could get him some cocaine. Long handed Simmons a $100 bill and Simmons started to walk away. Reginald told Long that he had made a mistake by giving Simmons the money, so Long called out to Simmons that he wanted his money back. Simmons ran around the corner of an apartment building. Long drove his car over the curb and up onto the grass, chasing after Simmons. The car struck Simmons and killed him. Testimony by Long, the coroner, and another witness indicated that Simmons fell on the ground before Long's car ran over him.

For his argument that vehicular homicide should have been submitted to the jury as a lesser included offense, Long relies on this Court's decision in Ex parte Jordan, 486 So.2d 485 (Ala.1986). Jordan was indicted for murder under § 13A-6-2, Ala.Code 1975. The indictment read, in pertinent part, as follows:

"1st: Larry Joe Jordan ... 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 [Odum] by operating a motor vehicle under the influence of alcohol and did thereby cause the death of John Howard [Odum] by striking the vehicle which John Howard [Odum] was operating, in violation of Section 13A-6-2 of the Alabama Criminal Code.

"2nd: Larry Joe Jordan ... did intentionally cause the death of ... John Howard [Odum], by operating a motor vehicle under the influence of alcohol and did thereby cause the death of John Howard [Odum] by striking the vehicle which John Howard [Odum] was operating, in violation of Section 13A-6-2 of the Alabama Criminal Code."

Jordan, 486 So.2d at 486 (footnote omitted).

Jordan requested that the jury be instructed that homicide by vehicle was a lesser included offense of murder. The trial judge refused to give the instruction and, instead, instructed the jury on murder, manslaughter, and criminally negligent homicide. Jordan was convicted of murder and was sentenced to 40 years in the penitentiary.

This Court granted Jordan's petition for certiorari review and initially reversed the Court of Criminal Appeals' affirmance, holding that under the facts in Jordan vehicular homicide was a lesser included offense of murder; however, on rehearing, this Court held that the failure to instruct the jury on vehicular homicide was harmless error because the jury had already rejected the lesser included offenses of manslaughter and criminally negligent homicide. This Court reasoned that although the instruction would have been proper, the failure to give it did not prejudice Jordan and did not affect the outcome of the case. Jordan, 486 So.2d at 489.

In deciding Jordan, this Court rejected the decision by the Court of Criminal Appeals, which "[stood] for the proposition that a set of facts establishing the commission of murder can never also establish the commission of vehicular homicide [and] create[d] a broad rule which fails to take into account the facts of each case." Id., at 488 (emphasis in original). This Court went on to say that considering the relationship of the murder and vehicular homicide statutes "only in abstract terms ... 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." Id.

This Court in Jordan held that "[u]nder the proper application of subsection (1) of [§ 13A-1-9(a) ] to the murder statute and the vehicular homicide statute, the issue [was] simple: Can all or fewer than all of these facts establishing the commission of murder also establish the commission of vehicular homicide?" Id. In Jordan, looking at the language of the indictment and the jury's conviction under the indictment, this Court found that some of the same facts that established murder could also have established homicide by vehicle. The jury found that Jordan "recklessly engage[d] 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 [Odum] by operating a motor vehicle under the influence of alcohol" and striking the car Odum was driving. 486 So.2d at 488. Vehicular homicide could also be established by some of these facts, because Jordan violated motor vehicle laws by driving under the influence of alcohol and because his driving was the proximate cause of Odum's death.

This Court also noted that if subsection (4) of § 13A-1-9(a) was applied the issue would be "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." Id. (Emphasis in original.) A lesser culpability is required for vehicular homicide than for murder, and reckless conduct that creates a " 'grave risk of death' and 'manifest[s] extreme indifference to human life' does encompass conduct in violation of motor vehicle laws which unintentionally but proximately causes another's death." Id. This Court held that, under either subsection (1) or subsection (4) of § 13A-1-9(a), Ala.Code 1975, Jordan was entitled to have the jury charged that vehicular homicide was a lesser included offense of murder. ²

We find this case indistinguishable from Jordan on the question of whether the jury should have been instructed that homicide by vehicle was a lesser included offense of murder. The jury rejected the intentional murder charge and found that Long committed manslaughter, i.e., that he "recklessly cause[d] the death of another person." For purposes of the Criminal Code, "recklessly" is defined at § 13A-2-2(3), in pertinent part as follows:

"A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation."

If the jury had been instructed on homicide by vehicle, it might have found that Long "unlawfully and unintentionally" caused Simmons's death by operating his vehicle in violation of any of the following statutes:

" § 32-5A-190. Reckless driving.

"(a) Any person who drives any vehicle carelessly and heedlessly in willful or wanton disregard for the rights or safety of persons or property, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property, shall be guilty of reckless driving."

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" § 32-5A-213. Drivers to exercise care.

"Notwithstanding other provisions of this chapter or the provisions of any local ordinance, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian...."

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" § 32-5A-52. Driving upon sidewalk.

"No person shall drive any vehicle upon a sidewalk or sidewalk area except upon a permanent or duly authorized temporary driveway."

We hold that Long, like the defendant in Jordan, was entitled to a charge on the lesser included offense of homicide by vehicle under either subsection (1) or subsection (4) of § 13A-1-9(a), Ala.Code 1975. The proof required for any of the four degrees of homicide at issue was simply that Long unlawfully ran over Simmons with his automobile and thereby caused Simmons's death. Thus, "the same or fewer than all of the facts" required to establish the commission of murder were required to establish manslaughter, vehicular homicide, or criminally negligent homicide, and so § 13A-1-9(a)(1) allows a conviction for any of the three lesser degrees of homicide. Indeed, the only question for the jury was the degree of culpability with which Long acted, so § 13A-1-9(a)(4) also establishes that the three lesser degrees of homicide are included offenses. Did Long intentionally kill Simmons? ³ If not, did he act with criminal recklessness so as to make the killing manslaughter? If not, was he reckless within the meaning of the...