Ex parte McCree

• Decision Date: 16 September 1988
• Citation: 554 So.2d 336
• Parties: Ex parte Michael Leon McCREE. (Re Michael Leon McCree v. State of Alabama). 87-353.
• Court: Alabama Supreme Court

Page 336

554 So.2d 336

Ex parte Michael Leon McCREE.

(Re Michael Leon McCree v. State of Alabama).

87-353.

Supreme Court of Alabama.

Sept. 16, 1988.

Rehearing Denied Nov. 18, 1988.

Rick Harris and Stephen R. Glassroth of Moore, Kendrick, Glassroth, Harris & White, Montgomery, for petitioner.

Don Siegelman, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for respondent.

JONES, Justice.

The petitioner, Michael Leon McCree, was convicted for manslaughter and was sentenced to 10 years in prison under Alabama's firearms enhancement statute (Ala.Code 1975, § 13A-5-6(a)(5)). ¹

FACTS

Because the Court of Criminal Appeals affirmed without an opinion, 519 So.2d 1385 (1987), McCree's "Request for Statement of Additional Facts," pursuant to Rule 39(k), A.R.A.P., is substantially reproduced below as the statement of facts (we have checked the petitioner's Rule 39(k) statement of additional facts against the record and find it to be correct in all material aspects):

"On Wednesday, November 27, 1985, James Groomster suffered a gunshot wound to the head that ultimately resulted in his death. McCree was convicted "McCree testified in his case and gave a detailed and almost entirely undisputed account of the events of the day. At the time of the shooting, McCree was employed by the Montgomery Police Department as a police officer, and had been since March, 1983. Also at the time of the shooting, he was employed as a part-time security guard at the Hardee's fast food restaurant on Fairview Avenue in Montgomery. He worked there, in addition to his full-time police work, some 20 to 25 hours per week. The second job was fully authorized by the city....

of manslaughter for the death of Groomster.

"McCree carried a city-issued .357 magnum pistol while on duty as a police officer and while working as a uniformed security guard at Hardee's. When not in uniform, he carried his personal weapon, a .25 Raven automatic, worth approximately eighty dollars. McCree testified that he needed the weapon for personal protection and because, as a police officer, he was on duty twenty-four hours a day. He stated he could not afford a more expensive personal weapon, and that many police officers also carried inexpensive personal weapons. State firearms expert Lonnie Harden testified that the pistol fit within the category 'Saturday Night Special,' that it lacked many of the safety features of more expensive weapons, that many police officers carry personal weapons without such safety features, and that many officers carry such personal weapons because it is all they can afford.

"McCree and Groomster had met while both were employed at Hardee's restaurant, Groomster as a cook and McCree as a security guard. McCree testified that they became best friends, and this was not disputed by any witnesses. State's witness O'Nell Latimore, who also worked at Hardee's, agreed that the pair were best friends.

"On the day in question, McCree and Groomster met just before 3 p.m., having planned to spend the day together and celebrate the upcoming holidays (the incident occurred on the Wednesday before Thanksgiving). McCree testified that throughout the day, after they left Hardee's, he and Groomster had been drinking Jack Daniel whiskey. Their first stop after Hardee's was McCree's home, where McCree took a shower. They also spent time that day with Charlie Powell and Edmund Edoziem, who also were McCree's friends. During the day the four went to the State liquor store [and then] returned to McCree's house, where they remained until approximately 7 p.m. They next went to a gas station, and then to Edoziem's apartment.

"McCree had purposely left his pistol at home before the trip to the State liquor store, but Groomster picked up the weapon and brought it along. When returning to his house from the liquor store, McCree left the pistol in his car, but it was retrieved by Groomster. McCree left his pistol home before the trip to Edoziem's residence, but it was again carried along on the trip by Groomster. McCree left the weapon in the car before going upstairs to Edoziem's apartment, but Groomster brought the pistol with him.

"McCree did not check to see if a round was in the chamber before handling the pistol because it was his habit never to keep a round in the chamber. While in Edoziem's apartment, Groomster asked McCree to show him the features of the pistol. While looking at the front and rear sights of the pistol, Groomster bent forward toward the front sights, and grabbed the pistol. It discharged, wounding Groomster in the head.

"McCree does not keep a round in the chamber of his pistol and could only explain its having been loaded by noting that Groomster had handled the pistol on several occasions before the incident. After the shooting, McCree told the other two friends at the apartment to call the paramedics and the police. He then went immediately to his home to tell his wife what had happened, and to return with her to the scene, stating he was "Shortly after he went home, McCree returned with his wife to the scene, and identified himself to Investigator Davis, a police officer who had arrived to investigate the shooting. McCree was placed in custody, and was taken to the Montgomery County Sheriff's Department for questioning.

afraid she would become hysterical. [McCree testified at trial that he based his fear for his wife's emotional reaction on her previous inability to handle a situation in which he had been injured.]

"Investigator Davis arrived at the scene of the crime at approximately 7:45 p.m. on November 27, 1985. When he arrived, a patrol unit was already present, protecting the scene. The officers there advised Investigator Davis that there had been two witnesses to the incident. At approximately 8 p.m., McCree arrived on the scene. He told Investigator Davis, 'I'm the one you're looking for.' Investigator Davis led McCree into the bedroom and advised him of his rights. At the time he took McCree into custody, Investigator Davis had no idea whether the shooting was an accident or a criminal act, but he nevertheless placed McCree under arrest, as is shown by the following testimony elicited from Investigator Davis:

"Q. Investigator Davis, when you advised Mr. McCree of his constitutional rights, was he free to go at that point?

"A. No, he was not.

"Q. He was under detention by you?

"A. Yes, he was.

"Q. And at that time, did you have any reason to believe that this shooting was anything other than an accident?

"A. I could only tell you from what he had told me, that it was an accident.

"Q. Well, the witnesses you interviewed both said it was an accident, didn't they?

"A. That's correct.

"Q. Did anybody tell you anything different other than it was an accident?

"A. Well, sir, I did not investigate the crime so I could not tell you. I can only tell you what I was told.

"Q. You don't know whether it was an accident? You didn't know at that point whether it was an accident or not?

"A. That's correct.

"Q. And was there anything in the crime scene that led you to believe that it was not an accident?

"A. No, it did not.

"After being questioned while in custody, McCree gave a statement, which was videotaped and transcribed and later received into evidence. McCree cooperated with the investigation, and no witnesses testified that he tried to obstruct the investigation or that he was uncooperative in any way.

"McCree had received standard firearms safety training while attending the Montgomery Police Academy, and was aware of the rule of firearms safety which requires those handling firearms to always check a weapon for bullets before handling it. The state's firearms expert, Lonnie Harden, found nothing inconsistent with McCree's version of events and testified that the shooting could very well have happened that way."

ISSUE

McCree was convicted of manslaughter, a Class C felony, pursuant to § 13A-6-3(a)(1) ²: "A person commits the crime of manslaughter if he recklessly causes the death of another person."

We granted the petition to review the decision of the Court of Criminal Appeals regarding the issue of the propriety of sentencing McCree pursuant to Ala.Code 1975, § 13A-5-6 (specifically, § 13A-5-6(a)(5), which, along with subsection "(a) Sentences for felonies shall be for a definite term of imprisonment, which imprisonment includes hard labor, within the following limitations:

(a)(4), was added by amendment in 1981). Section 13A-5-6(a) reads:

"(1) For a Class A felony, for life or not more than 99 years or less than 10 years.

"(2) For a Class B felony, not more than 20 years or less than 2 years.

"(3) For a Class C felony, not more than 10 years or less than 1 year and 1 day.

"(4) For a Class A felony in which a firearm or deadly weapon was used or attempted to be used in the commission of the felony, not less than 20 years.

"(5) For a Class B or C felony in which a firearm or deadly weapon was used or attempted to be used in the commission of the felony, not less than 10 years."

McCree argues that subsections (4) and (5), which enhance the sentence for the commission of a felony involving the use of a firearm or deadly weapon, apply only to the sentencing of those defendants found guilty of a felony whose commission required an intent to use or to attempt to use a weapon in the furtherance of the offense.

Section 13A-2-2 sets out the definitions of "culpable mental states":

"The following definitions apply to this Criminal Code:

"(1) INTENTIONALLY. A person acts intentionally with respect to a result or to conduct described by a statute defining an offense, when his purpose is to cause that result or to engage in that conduct.

"(2) KNOWINGLY. A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of that nature or that the circumstance exists.

"(3) RECKLESSLY. A person acts recklessly with respect to a...