Ex parte McCall

• Citation: 594 So.2d 628
• Parties: Ex parte Tommy McCALL. (Re Tommy McCall v. State of Alabama). 1901202.
• Decision Date: 11 October 1991
• Court: Alabama Supreme Court

Page 628

594 So.2d 628

Ex parte Tommy McCALL (Re Tommy McCall v. State of Alabama).

1901202.

Supreme Court of Alabama.

Oct. 11, 1991.

Carl E. Chamblee, Jr., Birmingham, for petitioner.

James H. Evans, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for respondent.

MADDOX, Justice.

This case raises the question of whether the trial court erred in denying the appellant's requested jury instruction on robbery in the third degree, especially in view of the fact that the Court of Criminal Appeals affirmed the trial court on the ground that the appellant failed to "specifically object." Rule 14, Ala.R.Cr.P.Temp. (now Rule 21, A.R.Cr.P.).

The appellant, Tommy McCall, was arrested and indicted in March 1990 for first degree robbery. Testimony at trial established that McCall followed the 69-year-old victim, Stanley Rose, from a neighborhood grocery store where Rose had cashed a Social Security check for $200. Rose testified that McCall shoved him up against a wall, pointed a gun at him, demanded his money, and then took the money from his front shirt pocket.

There was substantial evidence that McCall had robbed Rose. Rose positively identified McCall, as did two other witnesses. The major dispute was whether McCall actually had a gun or other dangerous weapon at the time of the robbery. Rose testified that McCall had a gun. Rose did admit that he was farsighted, that he needed eyeglasses at the time of the robbery, and that he did not have eyeglasses on at the time of the robbery. Additionally, two other witnesses, Willa Dean Anthony and Ruby Ingram, testified that they did not see the petitioner use a gun or any other dangerous weapon at the time of the robbery.

During the jury instruction conference, defense counsel stated, among other things: "Judge, I assume you are going to charge on robbery in the first, second, and third?" The trial judge responded: "I am not--[I am] charging on robbery one only." Defense counsel then stated:

"We would respectfully disagree with the Court in that there is evidence that has been adduced by the defendant that there was no weapon in the ... commission of this alleged crime, and [on] the authority of the cases cited by the Supreme Court [and] Court of Criminal Appeals that he is entitled to a charge for robbery in the third degree."

At another point during the charge conference, the following occurred:

"THE COURT: ... Most of these [requested charges] will be covered in the oral charge but I cannot guarantee it ... So the net effect is, I'm not giving any of these charges. Although I probably will cover most of them. We will argue and I will charge in the morning. Now you better note, of course, we have to have another charge conference. The first conference is to guide you all in arguing the case, the second conference is to note your objection, but it didn't hurt to note them now. I've never understood why they have two but that is the law, the rules.

"MR. CHAMBLEE [defense counsel]: Your Honor, I have offered those that you have given and I guess I really need to wait in reference to my objections with the exception of robbery in the third degree. You indicated you're not going to give robbery in the third degree or robbery in the second degree.

"THE COURT: Either of them.

"MR. CHAMBLEE: Which we except respectfully. And I will address the written requested charges after Your Honor has given the oral charge."

The trial court instructed the jury, and the following occurred:

"MR. CHAMBLEE: I note you didn't give robbery in the third degree or second degree.

"THE COURT: Right.

"MR. CHAMBLEE: We again respectfully ask the court again to do so."

The jury deliberated and found McCall guilty; the trial judge sentenced him to 20 years' imprisonment. The Court of Criminal Appeals affirmed his conviction by unpublished memorandum opinion stating: "The jury charge issue is decided adversely to the appellant for failure to specifically object."

We granted certiorari to review the record more closely, and based upon that review, we find that the trial court erred in refusing to give McCall's requested jury charge on robbery in the third degree. We also find that the Court of Criminal Appeals erred in affirming the trial court for "failure to specifically object."

The law in Alabama is clear: if a defendant asks for a jury charge on a lesser included offense, he is entitled to such a charge if there is any rational basis or reasonable theory that would support a conviction on the lesser offense. Ala.Code 1975, § 13A-1-9(b); Allen v. State, 546 So.2d 1009, 1012 (Ala.Crim.App.1989); McConnico v. State, 551 So.2d 424 (Ala.Crim.App.1988).

Third degree robbery is a lesser-included offense to first degree robbery. ¹ Thus, assuming there was any rational basis or reasonable theory upon which McCall could have been convicted of third degree robbery, he was entitled to a charge thereon.

The State argues that there is no rational basis or reasonable theory that would support a charge on third degree robbery. We disagree based on the evidence. Third degree robbery requires use of force or threat of imminent use of force in the course of committing a theft. Ala.Code 1975, § 13A-8-43(a). First degree robbery requires the elements of third degree robbery, and in addition the defendant must have been armed with a dangerous weapon, or caused physical injury to the victim during the course of the robbery. Ala.Code 1975, § 13A-8-41(a)(1) and (2). Even though the victim testified that McCall used a pistol in the robbery, two other witnesses testified that they did not see a gun, and there was some evidence that the victim was farsighted.

We find that there was ample evidence from which to find a rational basis or reasonable theory that no dangerous weapon was used. ² Therefore, the trial court should have instructed the jury on third degree robbery, unless, as found by the Court of Criminal Appeals, McCall did not "specifically object."

Rule 14, Ala.R.Crim.P.Temp., which was in effect at the time of McCall's trial, provides, in part, that "[n]o party may assign as error the court's giving or failing to give a written instruction, or the giving of any erroneous oral charge, unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection."

Our review of the record indicates that McCall's counsel did not request a written instruction on third degree robbery, but the record is clear that the trial court knew, both before it gave its oral instruction, and immediately thereafter, that counsel wanted it to instruct the jury on third degree robbery. In each instance, counsel objected to the trial court's refusal to instruct the jury on third degree robbery, and when the first objection was made the reason given was 'there was no weapon in the ... commission of the alleged crime [and, therefore, the defendant]' is entitled to a charge for robbery in the third degree.

The memorandum opinion of the Court of Criminal Appeals does not indicate the basis for its ruling.

If the Court of Criminal Appeals' affirmance of the conviction was bottomed on the failure of counsel to provide the court with written jury instructions, the court erred. This Court held in the companion cases of Matkins v. State, 497 So.2d 201 (Ala.1986), and Connolly v. State, 500 So.2d 68 (Ala.1986), that an oral request for a jury instruction was sufficient to preserve error in a criminal case.

The State acknowledges that this Court has held in Matkins and Connolly that written requested instructions are not always required. The State argues that those two cases are distinguishable because, it argues, in those cases, defense coun...