Johnson v. State

• Decision Date: 14 October 1986
• Docket Number: 6 Div. 53
• Parties: Larry John JOHNSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 600

497 So.2d 600

Larry John JOHNSON v. STATE.

6 Div. 53.

Court of Criminal Appeals of Alabama.

Oct. 14, 1986.

Thomas B. Hanes and Daniel D. Sparks of Hanes & Cotton, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Larry John Johnson was convicted of manslaughter in the death of Nancy Nails and sentenced to life imprisonment as a habitual offender.

On appeal, Johnson argues that the trial judge erred in refusing requested charges 3, 4, 5, 6, and 7 dealing with circumstantial evidence, inferences, deductions, and the burden of proof.

The charges requested by the defendant were:

"REQUESTED CHARGE NO. 3

"The test of the sufficiency of circumstantial evidence is whether the circumstances, as proved, produce a moral conviction, to the exclusion of all reasonable doubt, of the guilt of the Defendant, (whether they are incapable of explanation upon any reasonable hypothesis consistant with the Defendant's innocence). There should not be a conviction upon circumstantial evidence unless, to a moral certainty, it excludes every other reasonable hypothesis than that of the guilt of the accused. No matter how strong may be the circumstances, if they can be reconciled with the theory that the Defendant is innocent then the guilt of the accused is not shown by that full measure of proof the law requires, and the Defendant should be acquitted."

"REQUESTED CHARGE NO. 4

"I charge you that, while a jury is under a duty to draw whatever permissible inferences it may from the evidence, including circumstantial evidence, mere speculation, conjecture, or surmise that the Defendant is guility [sic] of the offense charged does not authorize a conviction. A Defendant should not be convicted on mere suspension [sic] or out of fear that he might have committed the crime. While reasonable inferences from the evidence may furnish a basis for proof beyond a reasonable doubt, mere possibility, suspension [sic], or guesswork, no matter how strong, will not overturn the presumption of innocence."

"REQUESTED CHARGE NO. 5

"An inference is merely a permissible deduction from the proven facts which the jury may accept or reject or give such probative value to as it wishes. It is a logical and reasonable deduction from the evidence and is not supposition or conjecture. Guesswork is not a substitute. A supposition is a conjecture based on the possibility or probability that a thing could have or may have occurred without proof that it did occur. The possibility that a thing may occur is not alone evidence, even circumstantially, that the thing did occur."

"REQUESTED CHARGE NO. 6

"I charge you, the jury, that the State has presented circumstantial evidence in order to prove the guilt of the Defendant. Circumstantial evidence may be used to support a finding of guilt if the evidence is so strong and cogent as to show Defendant's guilt to a moral certainty and the circumstances producing the moral certainty of the accused guilt are incapable of explanation on any reasonable hypothesis."

"REQUESTED CHARGE NO. 7

"I charge you, the jury, that the humane provisions of the law are, that a defendant charged with a felony, should not be convicted on circumstantial evidence, unless it shows by a full measure of proof, that the defendant is guilty. Such proof is always insufficient, unless it excludes, to a moral certainty, every other reasonable hypothesis, but that of the guilt of the accused. No matter how strong the circumstances, if they can be reconciled with the theory that the defendant acted in a manner permitted by the law, then the defendant is not shown to be guilty, by that full measure of proof which the law requires."

The substance of requested charges numbers 3, 6, and 7 were fairly and substantially covered in that portion of the trial judge's oral charge to the jury where he stated that "a person charged with a criminal offense should not be convicted unless the evidence excludes to a moral certainty every reasonable theory except that of the defendant's guilt. No matter how strong the circumstances are, they do not come up to the full measure of proof required by the law if the circumstances can be reasonably reconciled with the theory that the defendant is innocent." Wabbington v. State, 446 So.2d 665, 669-70 (Ala.Cr.App.1983), cert. denied, Wabbington v. Alabama, 467 U.S. 1254, 104 S.Ct. 3542, 82 L.Ed.2d 846 (1984). "The oral charge need not state the legal principle exactly as it appears in the requested charge. The principle expressed in the requested charge need only be fairly and substantially covered in the trial court's oral charge." Tyson v. State, 361 So.2d 1182, 1188 (Ala.Cr.App.1978).

The trial judge charged the jury on these principles immediately before the attorneys' closing arguments to the jury. Generally, a judge should not give undue prominence in his oral instructions to any aspect of the case. Ray v. State, 248 Ala. 425, 429, 27 So.2d 872 (1946). Here, the separate charge worked to the defendant's benefit, emphasizing for the jury his basic rights.

Requested charge number 3 was also properly refused because of its use of the term "all reasonable doubt." Ex parte Chavers, 361 So.2d 1106, 1108-09 (Ala.1978).

The court's oral charge did not cover the substance of requested charges numbers 4 and 5. These charges contain correct propositions of law. Ex parte Williams, 468 So.2d 99, 101 (Ala.1985), quoting from...