James v. State

• Decision Date: 01 May 2009
• Docket Number: CR-06-0396.
• Citation: 24 So.3d 1157
• Parties: Kenneth Bernard JAMES v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

24 So.3d 1157

Kenneth Bernard JAMES v. STATE of Alabama.

CR-06-0396.

Court of Criminal Appeals of Alabama.

May 1, 2009.

William M. Dawson, Jr., and Stephen Cochran Wallace, Birmingham, for appellant.

Troy King, atty. gen., and Tracy M. Daniel, asst. atty. gen., for appellee.

KELLUM, Judge.¹

The appellant, Kenneth Bernard James, was convicted of intentional murder, a violation of § 13A-6-2, Ala.Code 1975. He was sentenced to life imprisonment. He was also ordered to pay court costs, restitution, and all applicable fines. James appeals that conviction and sentence.

The evidence presented at trial tended to establish the following. Jo Mo Odom² testified that on August 21, 2004, he was living at a residence on 19th Place Southwest in Birmingham. On that afternoon, he and his friend, Michael McFarland, were outside the residence sitting on McFarland's automobile. Odom was sitting on the hood of the automobile, and McFarland was sitting on the trunk. While they were sitting on the vehicle, Odom watched Kenneth Bernard James drive his vehicle by them a couple of times.

Around 4:00, p.m., James stopped his car, and McFarland got into James's automobile. McFarland and James conducted a conversation in James's automobile. James and McFarland then got out of James's car and walked over to McFarland's vehicle.

James gave McFarland a cellular telephone, and McFarland placed the phone on a charger in his automobile. After a short time, McFarland gave the phone back to James, but kept the phone's "phone chip," i.e., the "SIM"/memory card. James told McFarland that he needed the phone chip, and that he could not leave without it. McFarland said that the chip belonged to him. According to Odom, there was no argument at that point.

James then got into his car and drove away. Approximately two to three minutes later, James turned his vehicle around and came back to McFarland's vehicle. James parked his car beside McFarland's car and got out. James approached McFarland, who was sitting on the trunk of his vehicle and again asked him for the phone chip. McFarland responded that he was not going to give James the chip.

Odom testified that at that point, a cell phone in James's pocket rang, and James removed the phone from his pocket and answered it. At the conclusion of the call, James put the phone back into his pocket. Odom testified that when James reached into his pocket a second time, he thought James was going to answer his cell phone again; instead, James pulled out a revolver with his right hand. James then shot McFarland in the chest twice—the first time in the area of McFarland's heart, and the second time, higher on his chest.

When James walked to where Odom was sitting on the front of the car, Odom put his hands in the air and stated, "I ain't got nothing to do with it." (R. 102.) James walked back to where McFarland was and put the gun to McFarland's head, but he did not shoot. James then left.

Odom testified that McFarland did not have a gun with him that day; he stated there had not been any type of argument or scuffle between James and McFarland when the shooting occurred.

Odom testified that after McFarland was shot he immediately telephoned the police from the "house phone" that he had with him at the vehicle. The police arrived in approximately 15-20 minutes.

Jo Mo Odom's brother, Tramayn Odom, and Bobby Richardson were walking toward Odom's home when they saw James drive his vehicle past them, turn around, and pull up beside McFarland's vehicle. McFarland was sitting on the trunk of his vehicle. Both vehicles were facing Tramayn Odom and Richardson.

According to Tramayn and Richardson, James got out of his vehicle and approached McFarland and stood facing McFarland at approximately an arm's length distance. Tramayn and Richardson testified that they heard James tell McFarland, "Give me the chip." (R. 62-63; 68.) Tramayn testified that he then heard McFarland tell James, "[T]he chip don't come with it. Just the phone." (R. 62-63) Both Tramayn and Richardson testified that they did not see any altercation or argument between McFarland and James.³

According to their testimony, James shot McFarland, and McFarland fell off the automobile. Richardson testified that approximately five seconds later, James shot McFarland a second time. After shooting McFarland, James aimed the gun at Jo Mo Odom. Tramayn Odom testified that James put the gun down and stood over McFarland before getting into his vehicle and driving away.

Tramayn Odom got a pillow and a blanket for McFarland. Tramayn and Richardson tried unsuccessfully to revive him.

No weapon was recovered from the scene. A purple book bag containing drugs was recovered from the trunk of McFarland's vehicle, and a small plastic bag containing syringes was found in the glove compartment. The police did not find any cell phone, memory card for a cell phone, or gun in McFarland's car.

McFarland suffered three gunshot wounds to his body—two in his chest, and one in the webbing between the fingers on the palm of his hand. He died as a result of the gunshot wounds to his chest. According to the medical examiner, the muzzle of the gun was at least 18" from the point of entry into McFarland's body when the shots were fired. McFarland's urine tested positive for cocaine and opiates.

James testified in his defense. He testified that he and McFarland were friends and that they had conducted drug transactions in the past. Around 3:30 p.m. on August 21, 2004, James saw McFarland as he drove near where McFarland was standing in the street. McFarland motioned to James, and James pulled his car beside McFarland's car. McFarland told James that he wanted to buy some drugs. When McFarland got into James car, James asked him, "Where the money at?" (R. 177.) McFarland told James that after Jo Mo made a sale, he would have the money. James waited for a while, but left when he received a telephone call.

James testified that he returned to the car because McFarland continued calling him on his cell phone. McFarland told James that he wanted to buy back the telephone McFarland given him to pawn. When James returned, he drove down the street and made a U-turn, then returned and parked beside McFarland's car.

James stayed in his car and asked McFarland for the money. At that point, McFarland got into his own vehicle with Jo Mo, then he got out of his vehicle and came to James's car. James testified that McFarland put a black revolver to his head and told James to get out of the car. James complied and put his hands into the air.

McFarland asked for his cell phone, but James testified that he had sold it earlier. James then reached into the car to get McFarland's other cell phone. When he gave McFarland the cell phone, McFarland asked him, "Now, where the dope at?" (R. 180.) James replied, "I ain't got no dope." (R. 180.) McFarland said, "No, I know you got the dope." (R. 180-81.) James reached into his sock, and gave McFarland a bag of "dope."

James testified that McFarland then demanded money. When James denied having any money, McFarland placed the gun under his left arm, and patted James down with his right hand. McFarland was holding his cell phone in his left hand. While this was transpiring, Jo Mo was telling McFarland that he was going to have to kill James, because James would tell McFarland's father and uncle about the incident.

James grabbed the gun from under McFarland's arm. James testified that McFarland reached up under his shirt, so he thought McFarland was retrieving another gun. James backed up and hit the bumper of his own car and fired two shots. He testified that he was terrified and that he was in fear for his life when he fired the gun. James said that he thought McFarland was going to kill him. James testified that he did not intend to kill McFarland, only to get him to back away.

According to James, Jo Mo looked like he was going to run toward him, but he stopped. James said that he then dropped the gun, got into his car, and drove away.

Ivan Batain testified for the defense. He was standing in the street in front of Mario McFarland's⁴ house on 19th Place Southwest, when he saw what appeared to him to be a robbery in progress; namely, Michael McFarland robbing Kenneth James. Batain stated that McFarland was pointing a gun at James, and James had his hands in the air. As Batain walked toward the front porch of McFarland's house, he heard gunshots.

James was not arrested and charged with McFarland's murder until almost two months after the incident.

I.

James contends that the trial court committed reversible error in refusing to charge the jury on provocation manslaughter. He maintains that the "record contains sufficient evidence to warrant submission of that theory of the case to the jury." (James's brief, p. 24.)

Defense counsel submitted proposed written jury charges on provocation manslaughter. During the charge conference, defense counsel requested that the trial court charge on provocation manslaughter as a lesser-included offense of intentional murder. Defense counsel argued that James's testimony that he was ordered out of his car at gunpoint, robbed, patted down, and threatened with death, provided sufficient evidence of provocation to necessitate submitting the issue to the jury. Defense counsel also argued that self-defense and provocation manslaughter are not mutually exclusive, and whether there was sufficient provocation recognized by law should be a question for the jury.

The trial court refused to charge the jury on provocation manslaughter because, it found, the charge was not warranted under the fact situation. The trial court reasoned that there was no "heat-of-passion" presented and that James's own testimony established that he acted out of fear for his life. Thus, the trial court determined that he was either guilty of murder, or he was innocent because he acted in self-defense.

Because of its relevance to the...