Jones v. State, 1 Div. 21

CourtAlabama Court of Criminal Appeals
Writing for the CourtPATTERSON; McMILLAN
Citation514 So.2d 1060
PartiesJames Hugh JONES v. STATE. -A.
Docket Number1 Div. 21
Decision Date14 April 1987

Stephen K. Orso, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.


Appellant, James Hugh Jones, was indicted for murder, in violation of § 13A-6-2, Code of Alabama 1975, by the Mobile County grand jury in September 1981. He was found guilty by a jury on July 9, 1982, of the offense charged in the indictment, and he was sentenced to imprisonment in the penitentiary for twenty-five years. A notice of appeal was timely filed; however, due to the appeal not being properly perfected by the filing of a transcript, we dismissed the appeal on March 20, 1984. Jones v. State, 447 So.2d 871 (Ala.Cr.App.1984). Thereafter, appellant sought relief by way of a petition for writ of error coram nobis, claiming, inter alia, ineffective assistance of counsel, for counsel's failure to take the necessary steps to perfect his appeal. His petition was denied by the trial court, after a hearing; however, we reversed, finding that counsel was ineffective, and ordered that appellant be granted an out-of-time appeal. Jones v. State, 495 So.2d 722 (Ala.Cr.App.1986). We also ordered appointment of counsel to represent appellant on appeal, and the filing of a complete record of the trial proceedings. The record having been filed and the case having been submitted on briefs of the parties, the out-of-time appeal is now properly before us for our consideration. Appellant raises four issues on appeal.


Appellant first contends that reversible error was committed when the trial court refused to charge the jury that criminally negligent homicide is a lesser included offense of the charge of murder.

Ingrid Delilah Sims testified that she lived with her sister, Anastasia Sims, and Anastasia's two children. She stated that appellant was the father of one of the children. She testified that around 8:30 p.m. on November 20, 1980, appellant came to the door of their home, apparently to see her sister, Anastasia. There is some evidence that appellant called Anastasia on the telephone earlier in the evening. Ingrid observed that Anastasia answered the door and went outside with appellant. After appellant and Anastasia had been outside a few minutes, she heard them loudly "fussing" and "arguing." Then about five minutes later, she heard a gunshot and a scream. She went outside to investigate and observed appellant drive away in his car at a high rate of speed. She observed no one else around. About twenty to thirty minutes later, appellant telephoned. Ingrid's mother answered, and Ingrid listened on the extension. Appellant stated that he was calling from the hospital and that Anastasia had been shot and was at the hospital. According to Ingrid, he also stated that Anastasia had "walked out the door and someone shot her." However, he also explained, as follows: "[T]he gun he had, he had it between his legs. It fell on the sidewalk and went off by itself." Anastasia died a short time later at the hospital.

Ronald Dyal, an officer with the Mobile police department, testified that on the evening of November 20, at about 11:00 p.m., he observed appellant drive up to the emergency entrance of the University of Alabama Medical Center, seeking treatment for a wounded female, who was in his automobile. Shortly thereafter, Dyal placed appellant under arrest, and properly advised him of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Dyal testified that appellant told him that the wounded female and he had been involved in a domestic altercation and that one or the other (Dyal could not remember which) produced a weapon and, during a struggle, the weapon had discharged, striking the female. Dyal further testified that appellant gave two different stories about what happened to the pistol: Appellant first stated that in his haste to get the victim to the hospital, the pistol was left at the scene, and later stated that he had thrown the pistol out the window of his automobile on the way to the hospital. A search was made for the pistol, but it was never found. When appellant exited from his automobile at the hospital, a .38-caliber shell casing apparently fell out of his vehicle.

Sergeant Eugene Ganoe, a detective with the Mobile police department, testified that he interviewed appellant at the police headquarters around midnight on November 20. He advised appellant of his Miranda rights and appellant, after waiving those rights, made a statement concerning the incident. According to Ganoe, appellant stated that "he and his girlfriend were in the front yard of the house, that she had backed into him, and the gun discharged accidentally."

Sergeant O.C. Lockett of the Mobile police department testified that he was present during the interview with appellant at the police headquarters. His recollection of what appellant said was as follows: "[H]e and the deceased were having words.... That when the actual shooting occurred they were on the front porch and she was ahead of him and had attempted to back up to him. That he had the pistol in his belt and was trying to remove it at the time it discharged." Lockett further stated, "He didn't say he was trying to remove it in an aggressive manner to shoot her, he was trying to get it out of the way or something of that nature."

Dr. Leroy Riddick, a forensic pathologist, performed an autopsy on the body of the victim, Anastasia Sims. His testimony disclosed that the bullet entered about the middle of her back and exited under her chin. The bullet did severe damage to her spinal column and severed her jugular vein. These injuries caused her death.

Appellant testified that he went to Anastasia Sims's house on the night of November 20 to pay her $50.00, which he had previously borrowed from her; that he knocked on the door and called her outside; that after talking with her for approximately ten minutes, a man whom he did not know came up and said to Anastasia, "What are you doing out here talking to this nigger?"; that Anastasia was between appellant and the stranger and was facing appellant and pushing him backward; and that the stranger pulled a pistol, fired a shot, and ran. He stated that Anastasia fell and that he picked her up, placed her in his automobile, and rushed her to the hospital. He testified that he telephoned Anastasia's mother from the hospital and told her that Anastasia had been shot and that another man had walked up in the yard and shot her. He denied telling her that he had dropped the gun and that it had gone off. He denied telling the police that he had thrown the gun out of his automobile. He stated that he may have told the police that the shooting was an accident since he believed the stranger was shooting at him and accidentally hit Anastasia. He denied making a statement to Sergeant Ganoe, denied making the statement which was attributed to him by Officer Dyal as having been made at the hospital, and stated that he told the officer at the hospital that another man had shot Anastasia, but the officer told him to shut up, that they did not want to hear that. He testified that, after being told by the officer to shut up, he did not open his mouth thereafter because he felt that they would not listen to him. On cross-examination, he denied having had an argument with Anastasia about two weeks before the shooting and denied threatening to kill her.

Ingrid Delilah Sims was recalled as a rebuttal witness for the State and testified that she had witnessed an argument between appellant and Anastasia a "week or two" before the shooting and that she had heard appellant say at that time that he would blow her sister's "MF head off." She also testified that, at the time of the shooting, the relationship between appellant and her sister was bad and that her sister was trying to "break off" the relationship.

A person accused of the greater offense has a right to have the court charge on the lesser offenses included in the indictment, when there is a reasonable theory from the evidence supporting his position. Wiggins v. State, 491 So.2d 1046 (Ala.Cr.App.1986); Chavers v. State, 361 So.2d 1106 (Ala.1978); Fulghum v. State, 291 Ala. 71, 277 So.2d 886 (1973). This rule applies regardless of whether the State or defendant offers the evidence. Pruitt v. State, 457 So.2d 456 (Ala.1984). Even if the defendant denies the charge in toto, but the evidence presented by the State suggests a reasonable theory supporting a charge on a lesser offense, the trial court is obliged to give a charge on the lesser offense when requested. Pruitt v. State. A court may properly refuse to charge on a lesser included offense only when (1) it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense or (2) the requested charge would have a tendency to mislead or confuse the jury. Lami v. State, 43 Ala.App. 108, 180 So.2d 279, cert. denied, 278 Ala. 710, 180 So.2d 282 (1965). Every accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility. Chavers v. State, supra; Burns v. State, 229 Ala. 68, 155 So. 561 (1934). Section 13A-1-9(b) provides, "The 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."

"The 'safer' practice is to charge upon all degrees of homicide: '[I]t is much the safer rule to charge upon all the degrees of homicide included in the indictment, when a party is on trial for murder, unless it is perfectly clear to the judicial mind that there is no evidence tending to bring the offense within some...

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