Harbin v. State

• Decision Date: 27 June 2008
• Docket Number: CR-05-1558.
• Citation: 14 So.3d 898
• Parties: Bobby Joe HARBIN v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

14 So.3d 898

Bobby Joe HARBIN v. STATE of Alabama.

CR-05-1558.

Court of Criminal Appeals of Alabama.

June 27, 2008.

Rehearing Denied August 22, 2008.

Certiorari Quashed February 13, 2009

Alabama Supreme Court 1071654.

Samuel Boyd Bentley, Jasper; and Thomas Lavon Carmichael, Jasper, for appellant.

Troy King, atty. gen., and Nancy M. Kirby, asst. atty. gen., for appellee.

SHAW, Judge.

Bobby Joe Harbin was indicted for murder, a violation of § 13A-6-2, Ala.Code 1975. A jury convicted him of the lesser-included offense of heat-of-passion manslaughter, a violation of § 13A-6-3(a)(2), Ala.Code 1975. He was sentenced to 20 years' imprisonment.

The evidence adduced at trial indicated the following. In the late evening hours of January 10, 2003, Bobby Joseph Harris was stabbed to death during an altercation outside a gasoline service station in Jasper. The altercation had begun earlier in the evening when Harris and his wife, Sarah, were riding with a friend, Tim Crawford, in Crawford's Ford pickup truck. As the three were traveling on Highway 78, a Volkswagen automobile tried to run the pickup truck off the road. Harbin was a passenger in the automobile; the automobile was being driven by Harbin's younger brother, Michael. The two vehicles chased each other for a short time, attempting to run each other off the road, until Crawford realized "there wasn't any sense" in continuing and ended the chase. (R. 127.) Crawford, Harris, and Sarah then went to a nearby Wal-Mart discount store to look for some of Crawford's friends. Unable to find those friends, the three decided to leave Wal-Mart. As they were leaving the parking lot, they saw Harbin's older brother, Ricky, who had had an affair with Harris's wife Sarah, in an Oldsmobile automobile. Ricky and Harris exchanged words, and Ricky told Harris to meet him at a nearby gas station. Crawford, Harris, and Sarah then followed Ricky to the gas station.

When Crawford pulled into the gas station, he saw that Ricky had parked next to the Volkswagen that Harbin and Michael had been in earlier. Crawford said that Ricky was standing by his car, but that he did not see Harbin and Michael. Sarah, however, testified that Harbin, Ricky, and Michael were all standing by their cars when she, Harris, and Crawford arrived. Harris got out of the truck and approached Ricky. The two argued and then began exchanging punches. Crawford testified at trial that Ricky threw the first punch; however, Sarah testified that Harris hit Ricky first. According to Crawford, Ricky then hollered and "from nowhere" Harbin and Michael "jumped out" to assist their brother. (R. 134.) Crawford testified that he saw Harbin stab Harris with a knife multiple times; however, Sarah testified that she did not see anyone with a weapon. Just as Crawford was getting out of his truck to help Harris, someone hollered that the police were coming, the fight broke up, and the three Harbin brothers left the scene. After the stabbing, Harris walked into the store and collapsed. The paramedics arrived, and Harris was transported to a nearby hospital, where he died from his stab wounds. Testimony indicated that the cause of Harris's death was exsanguination as a result of three stab wounds—one to the chest, one to the right torso, and one to the right thigh. The partially serrated knife that had been used in the stabbing and that was later found by the police was approximately 7 ½ inches long, and the blade was over 3 inches long.

The following day, Harbin and his brothers were arrested. Harbin gave two statements to police. In his first statement, Harbin said that Harris and Ricky had been arguing over Sarah since Sarah first began dating Harris, and that Harris had previously made threats toward him and his brothers. Harbin said that the night of the stabbing, he and Michael first saw Harris in a pickup truck on Highway 78, and that Harris tried to run him and Michael off the road and chased them. Harbin said that he and Michael then went to his cousin's house to get Ricky because "I got tired of [Harris] messing with us." (C. 145.) Harbin said that he, Michael, and Ricky then went to the Wal-Mart store, where they again saw Harris, at which point Harris threatened to kill them. Harbin said that he and his brothers ignored the threat and went to a nearby gas station, but that Harris followed them, and Harris and Ricky began fighting. Harbin admitted that he "pulled a knife out" when the fight started, but he claimed that he "wasn't going to use it" and that he "forgot" that the knife was in his hand when he punched Harris. (C. 145.) With respect to the events leading up to the fight, Harbin's second statement was essentially the same as his first. However, in his second statement, Harbin stated that he did not pull the knife out when the fight started, as he had said in his first statement, but that he already had the knife out and was using it to clean his fingernails when the fight started. Harbin continued to maintain in his second statement that he forgot that the knife was in his hand when he punched Harris, and he claimed that he was merely trying to help his brother. Harbin did not testify at trial, but he requested and received a jury instruction on self-defense or defense of others.

On appeal, Harbin raises two issues, both relating to the trial court's jury instructions. Specifically, Harbin argues: (1) that the trial court erred in sua sponte, and over his objection, instructing the jury on heat-of-passion manslaughter as a lesser-included offense of murder, and (2) that the trial court erred in refusing to instruct the jury on criminally negligent homicide as a lesser-included offense of murder.¹ The State initially argues that neither of these issues was properly preserved for review. However, we have reviewed the transcript of the lengthy charge conference, and we believe that both issues were fairly presented to the trial court, that the trial court was aware of Harbin's arguments, and that the trial court rejected Harbin's arguments.² See, e.g., Ex parte Knight, 453 So.2d 754, 756 (Ala.1984) ("The purpose of the objection rule is to give the trial court an opportunity to correct any alleged error or defect called to its attention before submission of the case to the jury."). Therefore, we conclude that both issues are properly before this Court for review.

I.

Harbin first contends that the trial court erred in sua sponte instructing the jury, over his objection, on heat-of-passion manslaughter as a lesser-included offense of murder. He argues that he had the right to pursue an "all-or-nothing" approach, to refuse any lesser-included-offense instructions, and to have the case submitted to the jury solely on the charge in the indictment.

Initially, we note that "`[a] trial court has broad discretion in formulating its jury instructions, provided they are an accurate reflection of the law and facts of the case.'" Toles v. State, 854 So.2d 1171, 1175 (Ala.Crim.App.2002), quoting Coon v. State, 494 So.2d 184, 186 (Ala. Crim.App.1986). "It has long been the law in Alabama that a trial court has broad discretion in formulating jury instructions, provided those instructions are accurate reflections of the law and facts of the case." Culpepper v. State, 827 So.2d 883, 885 (Ala.Crim.App.2001). Moreover, § 13A-1-9(a), Ala.Code 1975, provides that "[a] defendant may be convicted of an offense included in an offense charged." This general rule is limited by § 13A-1-9(b), Ala.Code 1975, which provides that "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." Here, the parties do not dispute, and the record clearly reflects, that heat-of-passion manslaughter is a lesser-included offense of murder as charged in the indictment in this case and that there was evidence presented at the trial supporting a charge on heat-of-passion manslaughter.³ Thus, the only question presented in this case is whether a trial court may instruct the jury on a lesser-included offense that is supported by the evidence in the face of the defendant's desire to pursue an all-or-nothing strategy with the jury. We hold that it may.

No Alabama court has squarely addressed whether a defendant has the right to pursue an all-or-nothing strategy and refuse instructions on any lesser-included offenses or whether a trial court may instruct the jury on a lesser-included offense over a defendant's objection.⁴ However, many other jurisdictions have addressed the issue, and the majority of those jurisdictions have held that a trial court does not err in instructing the jury on a lesser-included offense that is supported by the evidence, even over a defendant's objection. See Blackhurst v. State, 721 P.2d 645 (Alaska Ct.App.1986); Kurck v. State, 235 Ark. 688, 362 S.W.2d 713 (1962); People v. Bradford, 15 Cal.4th 1229, 939 P.2d 259, 65 Cal.Rptr.2d 145 (1997); State v. Johnson, 601 So.2d 219 (Fla.1992); Powell v. State, 270 Ga. 327, 510 S.E.2d 18 (1998); People v. Garcia, 188 Ill.2d 265, 242 Ill. Dec. 295, 721 N.E.2d 574 (1999); Garrett v. State, 756 N.E.2d 523 (Ind.Ct.App.2001); State v. Greer, 439 N.W.2d 198 (Iowa 1989); State v. Cordray, 277 Kan. 43, 82 P.3d 503 (2004); Smith v. Commonwealth, 737 S.W.2d 683 (Ky.1987); Commonwealth v. Berry, 431 Mass. 326, 727 N.E.2d 517 (2000); People v. Chamblis, 395 Mich. 408, 236 N.W.2d 473 (1975), overruled on other grounds, People v. Cornell, 466 Mich. 335 646 N.W.2d 127 (2002), overruled on yet other grounds, People v. Mendoza, 468 Mich. 527, 664 N.W.2d 685 (2003); State v. Pankratz, 238 Minn. 517, 57 N.W.2d 635 (1953); Harveston v. State, 493 So.2d 365 (Miss.1986); State v. Pribil, 224 Neb. 28, 395 N.W.2d 543 (1986); In re Nathan L., 146 N.H. 614, 776 A.2d 1277 (2001); State v. Powell, 84 N.J. 305, 419 A.2d 406 (1980); State v. Montoya, 116 N.M. 297, 861 P.2d 978 (1993), holding...