Ex parte Simmons

• Decision Date: 06 May 1994
• Parties: Ex parte State of Alabama. Ex parte Michael Anthony SIMMONS. (Re Michael Anthony Simmons v. State). 1920431, 1920442.
• Court: Alabama Supreme Court

Page 1282

649 So.2d 1282

Ex parte State of Alabama Ex parte Michael Anthony SIMMONS (Re Michael Anthony Simmons v. State).

1920431, 1920442.

Supreme Court of Alabama.

May 6, 1994.

Rehearing Denied June 24, 1994.

W. Lloyd Copeland and T. Jefferson Deen III of Clark, Deen & Copeland, P.C., Mobile, for defendant.

James H. Evans, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for the State.

PER CURIAM.

Michael Anthony Simmons was convicted of reckless murder, pursuant to Ala.Code 1975, § 13A-6-2(a)(2). The Court of Criminal Appeals held that the trial court had erred in charging the jury on aiding and abetting, so that court reversed the conviction and remanded the case for a new trial. Simmons v. State, 649 So.2d 1279 (Ala.Cr.App.1992). Both the State and Simmons petitioned this Court for certiorari review. We granted both petitions. The State contends that the Court of Criminal Appeals erred in reversing the judgment of conviction, because it argues that it was not error to charge the jury on aiding and abetting. Simmons argues that the Court of Criminal Appeals erred in not rendering a judgment for him, because he contends that there was insufficient evidence to support a conviction of reckless murder.

A three-year-old child was killed by a bullet fired from a gun while he was a passenger in his mother's automobile. The mother testified that she was driving down a public street when she noticed several men in a pickup truck shooting guns in her direction. She stated that she recognized the man on the back of the truck as the defendant, Simmons. She also testified that she observed several other people on the street, one of whom she recognized as Vernon "Blue" Peterson. She testified that Peterson appeared to be the target of the gunfire. At some point during the gunfire, the child was killed when a bullet entered the car and struck him in the head.

The bullet that killed the child exited the back of his head and was not recovered. Another bullet was recovered from the car in which the child was riding, and an expert witness testified that it was either a 9 mm., a .38 caliber, or a .357 caliber bullet. The expert witness testified that the fatal shot could have been fired from a weapon having any one of those three calibers. A total of 11 expended 9 mm. cartridge cases and 6 expended .38 special cartridge cases were found at the scene; some were found in the bed of the pickup truck and some were found on the street. An expert witness testified that the 9 mm. cartridges had been fired by two different weapons and that at least three different weapons had been fired at the scene. He further stated that, based upon his expertise, he believed that the bullet that killed the child could have been fired from any of the revolvers and semi-automatic pistols that were used in the shoot-out. However, it could not be determined from the evidence presented which of the men fired the fatal shot.

Although he was indicted for murder on two different theories, Simmons was eventually tried and convicted pursuant to Ala.Code 1975, § 13A-6-2(a)(2). In charging a violation of that section, the State alleged that Simmons

"did, under circumstances manifesting extreme indifference to human life, recklessly engage in conduct which created a grave risk of death to a person other than himself, to-wit: by firing a gun numerous times on a crowded street and in the direction of said crowd, and thereby caused the death of another person, to-wit: Leonard Rivers...."

The State proceeded under a theory of accomplice liability. The State conceded at trial and on appeal that it could not prove that Simmons fired the shot that killed the child. However, it contends that the evidence proves that Simmons aided and abetted in the reckless conduct that resulted in the death of the child.

I.

(State's Petition--No. 1920431)

The Court of Criminal Appeals held that the trial court erroneously instructed the jury that Simmons could be convicted of reckless murder on a theory of complicity. Essentially, the court held that it is "incompatible within the same charged offense" to say that one intends to promote or assist the commission of reckless conduct. 649 So.2d at 1281. We disagree.

Section § 13A-6-2(a)(2) provides:

"(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...."

This section deals with "reckless murder" or, as it is sometimes called, "universal malice murder" or "depraved heart murder." It requires the prosecution to prove conduct that manifests an extreme indifference to human life and not to the life of any particular person. The purpose of § 13A-6-2(a)(2) is to embrace those homicides caused by such acts as shooting a firearm into a crowd, throwing a timber from a roof onto a crowded street, or driving an automobile in a grossly wanton manner. See Northington v. State, 413 So.2d 1169 (Ala.Cr.App.1981), writ quashed, 413 So.2d 1172 (Ala.1982). This section was written in an attempt to define a degree of recklessness "that cannot be fairly distinguished from homicides committed purposely or knowingly." Model Penal Code and Commentaries, § 210.02, comment 4 (1980), as quoted in Ex parte Weems, 463 So.2d 170, 172 (Ala.1984). Under the concept of reckless murder, the actor perceives a substantial and unjustified risk, but consciously disregards the risk of death.

Alabama's complicity statute, § 13A-2-23, provides:

"A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:

"(1) He procures, induces or causes such other person to commit the offense; or

"(2) He aids or abets such other person in committing the offense; or

"(3) Having a legal duty to prevent the commission of the offense, he fails to make an effort he is legally required to make."

This section provides the basic principles for determining criminal liability that is based upon the behavior of another person. It sets out the type of action required and the necessary mental state.

In Ex parte Howell, 431 So.2d 1328 (Ala.1983), this Court addressed the issue of accomplice liability. There, the defendant, the victim, and the co-defendant were in a room together. The co-defendant was showing the victim a pistol when the defendant exploded some firecrackers in the house. The pistol fired and the bullet struck the victim, killing him. The defendant was charged with manslaughter, but was convicted of the lesser included offense of criminally negligent homicide. The Court of Criminal Appeals affirmed the conviction. On certiorari review, the only issue before this Court was whether a conviction of criminally negligent homicide by way of complicity was inconsistent.

This Court held that a defendant could not be convicted of criminally negligent homicide under a complicity theory, because, it said, complicity and criminally negligent homicide are "fundamentally inconsistent." Howell, supra, at 1330. The Court further said that it is logically impossible to be an accomplice to a criminally negligent homicide. However, Howell does not stand for the proposition that it is logically or legally impossible to be an accomplice to a reckless homicide.

Here, we are not concerned so much with a failure to "perceive a substantial and unjustifiable risk" (criminally negligent homicide, § 13A-6-4) as we are with an offense in which the principal actor does perceive, but consciously disregards, the risk of death. Therefore, we find it to be both logically and legally consistent to impose liability on one whose conduct aids or encourages another who is aware of, and who consciously disregards, a substantial risk of death.

Accomplice liability does not require that the accomplice intend for the principal to act in a reckless manner. Rather, accomplice liability requires only that the accomplice intend to promote or to assist the principal, having knowledge that the principal is engaging in, or is about to engage in, criminal conduct. See § 13A-2-23, Committee Comments. The mental state required for complicity is the intent to aid the principal in the criminal act or conduct, not the intent of the principal that death occur either intentionally or recklessly. In other words, for a person to be guilty of reckless murder as an accomplice, he need not know or decide whether the principal will act intentionally (§ 13A-6-2(a)(1)) or recklessly (§ 13A-6-2(a)(2)); rather, the accomplice need only have knowledge that the principal is engaging in reckless conduct and intentionally assist or encourage that conduct with the intent to promote or facilitate its commission.

In further support of our conclusion that complicity is consistent with recklessness, we point out that this Court has held that one can be an accomplice to manslaughter, which is also a reckless crime. ¹ See generally 2 W. LaFave and A. Scott, Substantive Criminal Law § 6.7(e) (1986). Morris v. State, 146 Ala. 66, 41 So. 274 (1906); Ferguson v. State, 141 Ala. 20, 37 So. 448 (1904); Martin v. State, 89 Ala. 115, 8 So. 23 (1890). In Martin, this Court held that two brothers were equally guilty of manslaughter, regardless of which brother fired the fatal shot:

"The jury were not without testimony from which they could draw the inference that the two Martins had a common purpose to set the law at defiance, and to use whatever force might be necessary to accomplish their object; and that each was ready to assist and encourage the other, if assistance and encouragement should become necessary. [This being so], each was accountable for the act of the other, whether such act was previously intended or not, if it grew naturally and proximately out of the unlawful purpose they had in view."

89 Ala. at...