Lawson v. State, 6 Div. 652

• Decision Date: 26 March 1985
• Docket Number: 6 Div. 652
• Citation: 476 So.2d 116
• Parties: Columbus LAWSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 116

476 So.2d 116

Columbus LAWSON v. STATE.

6 Div. 652.

Court of Criminal Appeals of Alabama.

March 26, 1985.

Rehearing Denied May 14, 1985.

Harwell G. Davis III of Boudreaux and Davis, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Tommie Wilson, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Columbus Lawson was indicted and convicted for the murder of Lloyd Reese. Sentence was twenty-five years' imprisonment. Five issues are raised on appeal.

I

The trial court did not err in refusing to charge the jury on criminally negligent homicide because there was no evidence of legal negligence in the defendant's conduct.

The State's evidence revealed that the defendant, the deceased, and Terry Batton were among a number of laborers waiting for jobs at a labor union hall on the morning of May 4, 1983. According to Batton, the defendant attempted to break in line in front of him. Words passed between the two men and Batton warned the defendant three times "not to go for his pocket." Someone started screaming "he's got a gun" and the defendant fired two shots at Batton and began chasing him. One of these shots struck Lloyd Reese in the back of the head and killed him.

Batton ran to his truck and displayed his own pistol. The defendant then retreated inside the union hall where he was arrested by a Birmingham police officer without incident. The defendant handed the officer his derringer and said, "I shot the wrong m__________ f__________." Outside the union hall, the defendant told Batton, "You was the m__________ f__________ I was after."

Sometime after the shooting but before the defendant retreated inside the union hall, he went to the brother of the deceased and said, "Man, I ain't meaning to kill your brother. I'm going to kill that m__________ f__________."

In contradiction of the State's evidence, witnesses for the defense testified that Batton had been trying to keep everyone straight in line and had had an argument with at least one other person in the line. Batton accused the defendant of getting his "spot" and drew his pistol but never fired. The defendant fired two shots.

Curtis Morrow testified that the deceased "had jumped out. I guess he had jumped out to see what was going on and got shot."

The defendant admitted firing twice after he saw Batton with a pistol in his hand "coming out of his pocket with it." The defendant testified that before he ever saw Batton point the pistol at him he drew his derringer and "never did get the hammer all the way back" before he released it and fired his first shot in Batton's "direction". He stated that Batton was "going back" when he fired and that as Batton backed away he walked after him: "Everytime I would take my gun off him he would start standing back up so I put it back on him and he'd squat down and back up some more." When asked if he ever held his derringer on Batton before he fired that first shot, the defendant testified, "I never did hold it on him 'cause too many peoples kept coming across in front of people, going around behind from one guy to another."

The defendant testified that his first shot must have hit the deceased. He fired the second shot after Batton was behind his truck, but stated that he could not fire at Batton because of the truck and that he "just shot in the direction."

The defendant testified that he did not "aim" at Batton but did shoot at him "in a sense." He told the police, "I fired a couple of shots.... I hit the wrong guy by mistake. He run out in the way in between us."

The defendant argues that a charge on criminally negligent homicide was justified because he was partially justified in his actions because he acted in good faith but with the unreasonable belief that he was acting in self-defense and that the killing of the deceased was accidental. This defense constitutes a combination of the imperfect defense doctrine and accident.

"The 'imperfect defense' doctrine which provided that a person committed the offense of criminally negligent homicide if he intentionally or recklessly caused the death of another person in the good faith but unreasonable belief that he had grounds for justification (self-defense) has been rejected by the Alabama Legislature. Comments to Alabama Code 1975, Section 13A-6-4 (Amended 1979)." Gwin v. State, 425 So.2d 500, 510 (Ala.Cr.App.1982), cert. quashed, Ex parte Gwin, 425 So.2d 510 (Ala.1983).

Here, as in Wakefield v. State, 447 So.2d 1325 (Ala.Cr.App.1983), there is no evidence of any negligence in the defendant's conduct. Although an accidental killing may support a conviction for negligent homicide, Ex parte Weems, 463 So.2d 170 (Ala.1984), "[a] killing is not accidental when the act causing death is done intentionally." Phelps v. State, 435 So.2d 158, 165 (Ala.Cr.App.1983).

In this case, criminal negligence involved the failure to perceive the substantial and unjustifiable risk that someone might be killed when the defendant fired his pistol. The defendant himself indicated that there were eighteen or nineteen people standing in line when the shooting occurred, although the State's evidence showed approximately forty-five. The defendant testified that he could not point his derringer at Batton because "too many peoples kept coming across in front of people." It is undisputed that the defendant intentionally fired his pistol either at or in the direction of another human being. His conduct excludes the possibility of negligent or inadvertent risk creation. There was simply no rational basis for a verdict of criminally negligent homicide. Raines v. State, 455 So.2d 967, 975 (Ala.Cr.App.1984); Sparks v. State, 450 So.2d 188, 191-92 (Ala.Cr.App.1984); Quates v. State, 439 So.2d 199 (Ala.Cr.App.1983). Additionally, we note that self-defense and accident are inconsistent defenses. Wakefield, 447 So.2d at 1327.

II

In his opening remarks, the prosecutor told the jury that the defendant "was sitting in a car with some other guys and that they were sitting over there smoking marijuana and drinking wine."

In response to the objection of defense counsel, the trial judge instructed the jury that they were "to consider as evidence in this case ... the testimony that comes from the witness stand to my immediate left and from no other source." Defense counsel then requested a mistrial, which was denied.

"The prosecution's opening statement to the jury on what it expects to prove should be confined to statements based on facts admissible in evidence. Counsel, however, is to be allowed considerable latitude in presenting to the jury in his opening statement what he expects the evidence to show." White v. State, 294 Ala. 265, 270, 314 So.2d 857, cert. denied, White v. Alabama, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975). " 'Counsel must restrict his opening statement to the issues of the case, and to the theory of the case as fixed by the pleadings, and although it is ground for reversal for him to call attention to collateral matters calculated to prejudice the jury, the fact that statements proper in themselves might also produce other collateral consequences harmful to the opposite party does not, if made in good faith, make the statements improper.' * * * 'Counsel, of course, may, in a reasonable way, outline what he expects to prove, unless it is manifest that such proof would be incompetent, or the offer or statement is made for the purpose of improperly influencing the jury.' " Daniels v. State, 243 Ala. 675, 679, 11 So.2d 756, cert. denied, Daniels v. Alabama, 319 U.S. 755, 63 S.Ct. 1168, 87 L.Ed. 1168 (1943). " 'Counsel has no right, in his opening statement, to rehearse before the jury facts which he is not in a condition to prove.' " Handley v. State, 214 Ala. 172, 174, 106 So. 692 (1925). "[I]t is not contemplated that by the abuse of this privilege an attorney will inject into the proceedings immaterial and prejudicial matter." Patterson v. State, 34 Ala.App. 359, 361, 39 So.2d 709 (1948).

At trial, Floyd Reese, Jr., the deceased's brother, testified, without objection, that approximately three hours before the shooting, he saw the defendant drinking wine outside the union hall in an automobile with some other men: "[W]hen they dranked that one they'd go get another one. As fast as they finished one bottle they'd go get another one." There was no other evidence that the defendant had been drinking and there was substantial evidence that he had not been drinking. There was absolutely no evidence that he had been smoking marijuana. The defendant denied either drinking or smoking.

In a homicide prosecution, evidence that the accused had been drinking shortly before the killing is admissible to show the condition of the accused at the time of the difficulty, Weems v. State, 222 Ala. 346, 347, 132 So. 711 (1930), and to negative self-defense. Hall v. State, 11 Ala.App. 95, 65 So. 427 (1914).

"If it was a fact that when the incident occurred one of the parties to it was under the excitement of strong drink, this fact was one proper to be considered by the jury in weighing the conflicting evidence as to how the difficulty started and what was done by the participants in the course of it. It is not to be doubted that evidence tending to prove that on an occasion in question one was intemperate or insulting in his expressions and hasty or violent in his conduct is strengthened by evidence tending to prove that at that time his ability to act soberly and with discretion was impaired by intoxication. The fact was a relevant one, in that it added to the probability of the defendant's conduct having been such as the evidence unfavorable to him tended to prove. It is common knowledge that one's use of intoxicants is liable to disturb his mental equilibrium, to weaken his power of self-restraint, and to induce hasty and unwarranted utterance and action without a due regard to consequences. The evidence in question, added to the probative effect of...