Isom v. State, 6 Div. 132

CourtAlabama Court of Criminal Appeals
Citation497 So.2d 208
Docket Number6 Div. 132
PartiesJames Edward ISOM v. STATE.
Decision Date12 August 1986

Jerry N. Quick, Trussville, for appellant.

Charles A. Graddick, Atty. Gen., and J. Elizabeth Kellum, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant, James Edward Isom, was indicted for intentional murder in violation of § 13A-6-2, Code of Alabama (1975). The appellant pleaded not guilty and the jury found him guilty of manslaughter. Subsequently, the appellant filed a motion for a new trial, which was denied. For the reasons outlined below, we affirm.

The appellant testified that on December 3, 1981, after he had awakened he attempted to awaken his wife. When he was unable to do so, the coroner's office and the Birmingham Police Department were notified. His wife was dead. An autopsy was performed on her body and it was determined that the cause of death was a lacerated liver resulting from a blow to the liver area of the abdomen. Following this diagnosis, a murder warrant was issued for the appellant. He was arrested on June 5, 1982, when he turned himself in to the Jefferson County Sheriff's Department.

At trial, a witness for the State of Alabama, Sharon Hardy, testified that she saw the appellant and his wife on the night of December 2, 1981, at approximately 9:30 or 10:00. She allegedly saw the appellant beat his wife in the head with his fists and drag her into their apartment by her feet. Sharon Hardy's mother testified that she witnessed an altercation between the appellant and his wife on December 2, 1981, wherein the appellant slapped her, dragged her by the waist, and then carried her into their apartment. The deceased's uncle and grandmother both testified that the appellant had stated on numerous occasions that he would either break the deceased from drinking or he would kill her; further, the grandmother testified that the appellant had told her that he had beaten the deceased. There was testimony concerning records showing that the deceased had been hospitalized on two separate occasions just prior to her death. A witness stated that she saw the appellant sling the deceased into a slab of concrete a few days prior to the deceased's hospital visit during which a cast was put on her arm.

I.

The appellant contends that because he was charged with intentional murder, the manslaughter conviction cannot stand as it is not a lesser included offense of intentional murder. "[A] charge on a lesser included offense is not proper unless there is a reasonable theory from the evidence to support such a proposition. Daly v. State, [442 So.2d 143 (Ala.Cr.App.1983) ], Ala.Code, § 13A-1-9 (1975)." Clark v. State, 451 So.2d 368, 373 (Ala.Cr.App.1984). "Under Alabama law, an accidental killing may support a conviction for murder, manslaughter, or negligent homicide, depending on the circumstances of the case." Weems v. State, 463 So.2d 170, 172 (Ala.1984).

"Recklessly causing another's death may give rise to the lesser included offense of manslaughter. A defendant who recklessly causes another's death commits manslaughter if he 'consciously disregard[ed] a substantial and unjustifiable risk that his conduct would cause that result.' ... [I]t appears that the degree of recklessness which will support a manslaughter conviction involves a circumstance which is a 'gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation,' but is not so high that it cannot be 'fairly distinguished from' the mental state required in intentional homicides." Id.

In the case at bar, witnesses' testimony indicated that the appellant was intoxicated on the night of December 2, 1981. This court has held that in an intentional murder prosecution, a jury charge on the lesser included offense of manslaughter would be proper because it was evidence, regardless of how highly controverted, to the effect that the appellant was intoxicated. " '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." ' " Silvey v. State, 485 So.2d 790, 793 (Ala.Cr.App.1986).

Moreover, the appellant contends that because "the jury found the appellant not guilty of intentional murder by finding the appellant guilty of manslaughter, the appellant is due to have this conviction reversed." However, this contention has no merit under the holding in Guy v. State, 395 So.2d 161 (Ala.Cr.App.1981), wherein this court stated that "[a]lthough appellant is clearly correct in saying that the verdict of the jury [of guilty of manslaughter in the second degree] has the effect of an acquittal of defendant of manslaughter in the first degree and murder in both degrees, he presents no authority for his contention that it necessarily follows therefrom, when coupled with absence of evidence that the homicide was unintentional, that the conviction of manslaughter in the second degree should be set aside." Guy, supra, at 163.

Most importantly, the appellant did not take exception to the oral charge made by the judge on manslaughter. "Review on appeal is limited to matters on which rulings are invoked at the trial level. In the absence of a ruling, a request for a ruling, or an objection to the court's failure to rule, this court has nothing to review. Whorton v. State, 422 So.2d 812 (Ala.Cr.App.1982)." Robinson v. State, 441 So.2d 1045, 1048 (Ala.Cr.App.1983); Hutcherson v. State, 441 So.2d 1048 (Ala.Cr.App.1983). Thus, "the correctness of the trial court's oral charge cannot be challenged for the first time on appeal." Marschke v. State, 450 So.2d 177, 179 (Ala.Cr.App.1984); Singletary v. State, 473 So.2d 556, 575-76 (Ala.Cr.App.1984). Further, the appellant's counsel stated that he was satisfied with the charges as given at the trial level. " 'Such an announcement precludes our review of the alleged error.' Thompson v. State, 405 So.2d 717, 719-20 (Ala.Cr.App.), cert. denied, Ex parte Thompson, 405 So.2d 721 (Ala.1981)." Richardson v. State, 456 So.2d 1152, 1155 (Ala.Cr.App.1984). See also Tuck v. State, 384 So.2d 1240, 1242-43 (Ala.Cr.App.1980).

The instructions relating to manslaughter as a lesser included offense of intentional murder were not confusing or otherwise prejudicial to the appellant. Lewis v. State, 439 So.2d 1353 (Ala.Cr.App.1983).

II.

Appellant further contends that because the trial judge gave the jury an instruction on manslaughter, the jury should also have been instructed on the lesser included offense of criminally negligent homicide, "especially in light of the fact that the defendant was subsequently convicted of the offense of manslaughter."

"If the homicide is brought about by 'criminal negligence,' the defendant is guilty of criminally negligent homicide. The essential difference between 'recklessness,' as that term is used in the murder and manslaughter statutes, and 'criminal negligence' is that a reckless defendant is one who has 'consciously disregarded' a substantial and unjustifiable risk, whereas a negligent actor needs only to disregard a risk of which he 'should have been aware.' " Weems v. State, supra, at 172.

This court has stated that "[t]he submission to the jury of manslaughter as a lesser included offense of murder does not necessarily entitle a defendant to a jury charge on criminally negligent homicide as a lesser included offense." Phelps v. State, 435 So.2d 158, 166 (Ala.Cr.App.1983). Thus, a charge on criminally negligent homicide has been held improper although a charge on manslaughter as a lesser included offense was necessary. Wyllie v. State, 445 So.2d 958, 962 (Ala.Cr.App.1983); Quates v. State, 439 So.2d 199, 202 (Ala.Cr.App.1983). The Alabama rule "requires that a lesser included offense instruction be given if 'there is any reasonable theory from the evidence which would support the position.' " Kennedy v. State, 472 So.2d 1092, 1102 (Ala.Cr.App.1984), judgment affirmed, 472 So.2d 1106 (Ala.1985), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed. 325 (1985). Further, " '[t]he safer practice is to charge upon all degrees of homicide.' " Silvey v. State, 485 So.2d 790, 793 (Ala.Cr.App.1986), quoting Phelps v. State, 435 So.2d 158, 163 (Ala.Cr.App.1983). " 'The only difference between manslaughter under § 13A-6-3(a)(1) [Alabama Code (1975) ] and criminally negligent homicide is the difference between recklessness and criminal negligence.... The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it.' " Woods v. State, 485 So.2d 1243, 1245 (Ala.Cr.App.1986), quoting C. Torcia, 1 Wharton's Criminal Law Section 27 (14th ed. 1978). In Woods, supra, the factual circumstances surrounding the murder were similar to those in the case at bar. Witnesses testified that the appellant had hit the victim on a number of occasions, while the appellant alleged that he did not intend to kill the victim, who was his close friend. Further, his friend was an alcoholic and therefore more prone to subdural hematomas. "Certainly it is rational that one might not be aware that a blow might cause another's death." 485 So.2d at 1246. This court found that there was a reasonable theory from the evidence to support a charge of criminally negligent homicide.

Although a reasonable theory for a charge of criminally negligent homicide might also exist under the case at hand, no error can be found in the trial judge's failure to so charge, because the appellant never requested this instruction at trial. When an issue is raised for the first time on appeal, it is too late for review. Vinzant v. State, 462 So.2d 1037, 1040 (Ala.Cr.App.1984). "The trial court...

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