Hammond v. State

• Decision Date: 28 August 1998
• Citation: 776 So.2d 884
• Parties: Jerry HAMMOND v. STATE.
• Court: Alabama Court of Criminal Appeals

776 So.2d 884

Jerry HAMMOND v. STATE.

CR-96-0273.

Court of Criminal Appeals of Alabama.

August 28, 1998.

Opinion Modified on Denial of Rehearing November 20, 1998.

Blake A. Green, Dothan; and Deanna S. Higginbotham, Dothan, for appellant.

Bill Pryor, atty. gen., and Rosa Davis and Michelle Riley Stephens, asst. attys. gen., for appellee.

COBB, Judge.

Jerry Hammond appeals from his conviction for capital murder, a violation of § 13A-5-40(a)(2). On September 16, 1996, Hammond was tried, for the second time,¹ before a jury on the charge that he murdered his uncle, James McNeil, during the commission of a robbery in the first degree. Following the guilty verdict, the jury recommended, by a vote of 11-1, that Hammond be sentenced to death. The trial court imposed the death sentence recommended by the jury. Hammond appeals.

The State's evidence tends to show the following. On August 3, 1988, Jerry Hammond and Sandra Jackson went to Hammond's house in Dothan, where they smoked crack cocaine. During the late evening hours, they smoked crack cocaine on four occasions. Between those occasions they drove back and forth from Hammond's house to Martin Homes housing project, where they would purchase more crack cocaine. According to Jackson, they would smoke the crack cocaine at Hammond's house, and after the effects of the drug wore off after 10 to 20 minutes, they would go purchase some more crack cocaine. After the fourth purchase, the two had run out of money and, according to Jackson, Hammond told her he could get some money "from a lady that he knew." Sometime after midnight, the two left Hammond's house in a distinctive blue Volkswagen automobile with "mag wheels" and a "T-top" roof. They drove to the Dothan neighborhood where Hammond's 80-year-old uncle James McNeil lived. According to Jackson, Hammond got out of the car carrying a yellow towel and a knife. He told her, "I'm not going to Cousin McNeil's house." She stayed in the car, and watched Hammond walk down the street into the dark. Jackson testified that, as she sat in the car, she heard a door "pushing, as if something was hindering it from opening." She said she also heard loud groaning, and the sound of glass breaking. When Hammond returned to the car, he did not have the towel, but he was still carrying the knife. He was also carrying a pair of blue pants that had what appeared to Jackson to be wet blood on them. According to Jackson, Hammond told her to "shut up" when she asked what he had done. As he drove, Hammond removed his shirt and threw it out the window. He went through the blue pants and retrieved a wallet from which he removed money. The wallet and pants were also thrown out the car window. Hammond and Jackson parked the car on a dirt road and left, going in different directions.

During this time, Robert Ealy, James McNeil's next-door neighbor, was home visiting with his cousin. According to Ealy, he heard "some rattling and a bunch of noise" coming from McNeil's house. He could hear James McNeil "hollering." As he and his cousin stood on his porch, Ealy heard the "sound of a window breaking" and he saw Hammond leave James McNeil's home through a window and jump into some bushes. Ealy said Hammond was carrying something. Ealy testified that his cousin asked Hammond what was going on in the McNeil home, but Hammond did not respond. They watched Hammond walk back down the street and get into the blue Volkswagen with "mag wheels" and drive off.

When police and paramedics arrived at McNeil's home, they found James McNeil lying on the kitchen floor in a pool of blood, with a refrigerator lying on top of him. He was dead. McNeil's roommate, an elderly man named Eddie McKissick, was in another room, suffering from a stab wound to his back. James McNeil had died from multiple stab wounds, including a stab wound to the chest that pierced his heart.

I.

Hammond argues that the trial court erred in failing to instruct the jury on voluntary intoxication. The record indicates that the trial court declined to give instructions requested by the defense on voluntary intoxication or on any lesser included offenses to capital murder. According to State witness Sandra Jackson, she and Hammond had smoked crack cocaine four times on the night of the murder, beginning at about 9:30 p.m. and continuing up to the time she and Hammond left his house to find more money. On each occasion, they would smoke all the crack cocaine they had purchased and then go back to their supplier and buy more. After buying more crack cocaine, she and Hammond would return to Hammond's house, where they would smoke it all again. The prosecutor also asked Ms. Jackson, "Did you use any marijuana that night?"; she responded, "Yes." (R. 756.) On cross-examination, Sandra Jackson testified that she believed she and Hammond had smoked two pieces of crack cocaine the first time, two or three pieces the third time, and one piece of crack cocaine the fourth time. She could not remember how much crack cocaine they had bought and smoked on the second occasion. She admitted the crack cocaine made her "high." (R. 808-15.) The State's theory of the case was that Hammond killed James McNeil while stealing money from him to "feed" his "cocaine habit." (R. 1818.)

This court has previously addressed the question of when an instruction on intoxication should be given. In Fletcher v. State, 621 So.2d 1010 (Ala.Cr.App.1993), we held:

"A charge on intoxication should be given if `"there is an evidentiary foundation in the record sufficient for the jury to entertain a reasonable doubt"' on the element of intent. Coon v. State, 494 So.2d 184, 187 (Ala.Cr.App.1986)(quoting Government of the Virgin Islands v. Carmona, 422 F.2d 95, 99 n. 6 (3d Cir. 1970)). See also People v. Perry, 61 N.Y.2d 849, 473 N.Y.S.2d 966, 966-67, 462 N.E.2d 143, 143-44 (App.1984)(`[a] charge on intoxication should be given if there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis'). An accused is entitled to have the jury consider the issue of his intoxication where the evidence of intoxication is conflicting, Owen v. State, 611 So.2d 1126, 1128 (Ala.Cr.App.1992); Crosslin v. State, 446 So.2d 675, 682 (Ala.Cr.App.1983), where the defendant denies the commission of the crime, Coon v. State, 494 So.2d at 187; see Moran v. State, 34 Ala.App. 238, 240, 39 So.2d 419, 421, cert. denied, 252 Ala. 60, 39 So.2d 421 (1949), and where the evidence of intoxication is offered by the State, see Owen v. State, 611 So.2d at 1127-28.

"... In reversing two separate capital convictions where the trial court refused to instruct the jury on the lesser included offense of manslaughter, this Court has stated:

"`No matter how strongly the facts may suggest that appellant was not so intoxicated at the time he committed the offense that he was incapable of forming the necessary specific intent, the jury should have been instructed on manslaughter as a lesser included offense since there was a "reasonable theory from the evidence which would support the position."'

"Crosslin v. State, 446 So.2d 675, 682 (Ala.Cr.App.1983)(capital offense of murder of two persons in a single transaction); applied in McNeill v. State, 496 So.2d 108, 109 (Ala.Cr.App.1986)(capital offense of murder during a robbery)."

Fletcher v. State, 621 So.2d at 1019-20.

While the degree of intoxication necessary to negate specific intent must rise to the level of insanity, it is clear that where there is evidence of intoxication, the extent to which the accused is intoxicated is a question to be decided by the jury. Crosslin v. State, 446 So.2d at 682.

"In order to determine whether the evidence is sufficient to necessitate an instruction and allow the jury to consider the defense, `we must accept the testimony most favorable to the defendant.'... United States v. Lewis, 592 F.2d 1282, 1286 (5th Cir.1979). The Alabama Supreme Court has indicated that proper written requested instructions must be given `which are supported by any evidence, however weak, insufficient, or doubtful in credibility.' Chavers v. State, 361 So.2d 1106, 1107 (Ala.1978)."

Coon v. State, 494 So.2d 184, 186 (Ala.Cr. App.1986).

The State argues that, while there was evidence presented that Hammond had used crack cocaine continuously the night of the killing until the time McNeil was killed, there was no evidence that the cocaine caused Hammond to be intoxicated. The prosecutor asked Sandra Jackson:

"Q: Now, tell us about the crack cocaine that you smoked. How long did it affect you, in any manner or fashion? Did it give you a high, or could you tell that you were under the influence? I mean, was it two or three hours it affected you?

"A: No. Anywhere from 10 to 15, 20 minutes."

(R. 755.) The prosecutor also asked Sandra Jackson if there were any times that Hammond could not drive his automobile or was unable to understand what she was saying to him. Jackson responded, "No." (R. 757-58.) The facts of this case are similar to those of Owen v. State, 611 So.2d 1126 (Ala.Cr.App.1992), where evidence was introduced indicating that the appellant had drunk anywhere from four to eight beers within a two-hour period before the murder, but two police officers testified that he did not appear to them to be intoxicated.² This Court held that evidence of the drinking of as many as eight beers within that period supported an instruction on intoxication. Quoting from Silvey v. State, 485 So.2d 790, 792-93 (Ala.Cr.App.1986), this Court held:

"`"There being some testimony tending to show that defendant was drunk, he had a right to have the jury pass upon its credibility and sufficiency to prove that he was so drunk as to be incapable of forming the specific intent...."'"

Owen v. State, 611 So.2d at 1128-29. This holding is consistent with the holding in Fletcher v. State, supra, in which we adopted the rationale of People v....