Lee v. State, 6 Div. 719

• Citation: 562 So.2d 657
• Decision Date: 29 September 1989
• Docket Number: 6 Div. 719
• Parties: Sanchez Andrew LEE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 657

562 So.2d 657

Sanchez Andrew LEE v. STATE.

6 Div. 719.

Court of Criminal Appeals of Alabama.

Sept. 29, 1989.

Rehearing Denied Feb. 23, 1990.

Certiorari Denied April 27, 1990. Alabama Supreme Court 89-895.

Richard Jaffee of Jaffee, Burton, DiGiorgio, Birmingham, for appellant.

Don Siegelman, Atty. Gen., and Dorothy F. Norwood, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

In June 1987, the appellant was indicted by a Jefferson County grand jury for the intentional murder of Hayward Green, in violation of § 13A-6-2, Code of Alabama (1975). In November 1987, appellant was found guilty as charged in a jury trial, and was sentenced to life imprisonment. This appeal follows.

I.

The appellant first argues that the trial court erred in refusing to give his requested written jury charges 13 and 16, which pertain to "heat of passion" or "provocation" manslaughter. Appellant's requested jury charge No. 13 reads as follows:

"13. To sustain the charge of manslaughter in this case, the State by the evidence must prove beyond a reasonable doubt each of the following elements of the offense:

"First: that Hayward Glenn Green is dead;

"Second: that Sanchez Lee caused the death of Hayward Glenn Green; that is, that he died as a result of being shot by Sanchez Lee; and

"Third: that in committing the act or acts which caused the death of Hayward Glenn Green Sanchez Lee acted with the intent and purpose to cause his death, but that he did so due to a sudden heat of passion caused by legal provocation and before a reasonable time for the passion to cool and for reason to reassert itself."

Appellant's requested jury charge No. 16 reads as follows:

"16. A person commits a crime of manslaughter: (1) if he recklessly causes the death of another person; or (2) if he causes the death of another person under circumstances which would otherwise constitute murder as I have previously instructed you, but in doing so he was moved to act by a sudden heat of passion caused by lawful provocation and before there had been a reasonable time for the passion to cool and for reason to reassert itself."

In this Court's opinion, both of the appellant's requested jury charges are confusing and misleading, in that both charges refer to the terms "heat of passion" and "lawful" or "legal" provocation, but fail to define or explain these terms. Refusal to give requested charges is not improper, where such charges are confusing or misleading. Bogan v. State, 529 So.2d 1029, 1032 (Ala.Cr.App.1988); Yarber v. State, 437 So.2d 1319 (Ala.Cr.App.1981), rev'd on other grounds, Ex parte Yarber, 437 So.2d 1330 (Ala.1983); Payne v. State, 419 So.2d 286 (Ala.Cr.App.1982). Further, other decisions of this Court appear to indicate that the failure of a requested jury charge to define an essential term contained therein is, in itself, reason for the court to refuse to give the charge. See Gautney v. State, 284 Ala. 82, 222 So.2d 175 (1969); Wakefield v. State, 447 So.2d 1325, 1327 (Ala.Cr.App.1983); Trenor v. State, 354 So.2d 1180, 1184 (Ala.Cr.App.1977), cert. denied, 354 So.2d 1185 (Ala.1978).

Moreover, this issue has not been properly preserved for this Court's review. At the conclusion of the court's instructions to the jury, the following discussion took place out of the hearing and presence of the jury:

"[BY MR. JAFFEE]

"I except to your Honor refusing to given certain requested charges, all of which have been refused, 1 through 31.

In particular, exception to Requested Charge 4: You instructed that if the facts and circumstances established by the prosecution are susceptible to two different inferences--I'm not reading it now, I speaking from memory--

"THE COURT: Yes.

"MR. JAFFEE:--one which points to guilt and one which points to innocence, then you're obligated to adopt that inference that points to innocence.

"Secondly, Instruction Number 5: If the jury can reconcile the evidence before with any reasonable hypothesis consistent with the innocence of the accused, it is their duty to do so and find the accused not guilty.

"Next, Number 13, with respect to manslaughter. We believe that the jury should also be instructed on the other alternatives of manslaughter as enumerated in Charge Number 13.

"THE COURT: Provocation manslaughter?

"MR. JAFFEE: Yes, sir.

"THE COURT: That is in intentional homicide, Richard, that would be greatly at odds with your intoxication mitigation.

"MR. JAFFEE: Yes, sir.

"THE COURT: I thought about provocation manslaughter, I don't think it's compatible with that charge on reckless manslaughter.

"MR. JAFFEE: Same thing with Charge Number 16, similarly.

"THE COURT: Yes." (Emphasis supplied.)

In the case sub judice, "[c]ounsel's objection to the refusal of his requested charges ... does not satisfy the requirement that a party 'state with particularity the grounds of their objection.' " Bogan, supra, at 1031 (emphasis in original) (citation omitted). See also, Temp.Rule 14, A.R.Crim.P. General, non-specific objections fail to preserve the issue of the trial court's failure to give a defendant's requested jury charge. Brannon v. State, 549 So.2d 532 (Ala.Cr.App.1989). Thus, appellant's argument as to this issue must fail.

II.

The appellant likewise contends that the trial court erred to reversal in refusing to give his requested written jury charge No. 27, which pertained to the violent character of the victim. The appellant's requested charge No. 27 reads as follows:

"The Court charges the jury that if they believe from the evidence that the deceased (Hayward Glenn Green) was of a violent and bloodthirsty character they are to take such evidence into consideration in determining the degree of the defendant's guilt, provided they find him guilty."

We note, however, that the following instruction was given by the Court in its oral charge to the jury:

"More in the area of testimony. We had some testimony delivered relative to the deceased person's reputation in the community; did we not? Reputation for being a violent or turbulent person, I believe is how it was phrased. And moreover, for carrying a pistol, delivered by one of the witnesses yesterday, if I recall.

"Why did that come to your attention? That comes to your attention for you to consider in assessing whether or not the deceased person may have aggressed against the Defendant Lee, and/or to throw light on the subject of whether or not Mr. Lee, the defendant, apprehended that his life was in peril. More on self-defense later."

We find that the trial court's oral charge to the jury "substantially and fairly" states the principles embodied in the appellant's written requested instruction. Section 12-16-13, Code of Alabama (1975). " 'The law is well-settled that a refused charge, stating correct principles of law, which is adequately and substantially covered in the court's oral charge or in given charges does not constitute error.' " Bates v. State, 484 So.2d 1206, 1208 (Ala.Cr.App.1986) (citations omitted). The refusal to give a requested charge on the effect of evidence of bad character requires reversal only where there is evidence of bad character and the substance of the charge is not covered by the trial court's oral charge. Wright v. State, 494 So.2d 726, 732 (Ala.Cr.App.1985), aff'd, Ex parte Wright, 494 So.2d 745 (Ala.1986) cert. denied, 479 U.S. 1101, 107 S.Ct. 1331, 94 L.Ed.2d 183 (1987); Ashlock v. State, 367 So.2d 560 (Ala.Cr.App.1978), cert. denied, 367 So.2d 562 (Ala.1979). The trial court therefore did not err by refusing to give the appellant's requested jury instruction.

III.

The appellant argues that the trial court erred by instructing the jury as follows:

"Now, how to tell you to go about assessing what the evidence was. Of course, there was a difference in the testimony, you have got to decide what is the truth. Use your common, everyday horse sense in sizing up somebody's testimony, evaluating a person.

"What are some of the criteria that you might go by? Demeanor, manner of testimony. How did a witness impress you with his demeanor or manner of testimony? Interest in the outcome of the case. Does a witness have an interest in what the ultimate result might be? That is a criterion you can consider if you deem it is germane.

"Of course, Mr. Lee, the defendant, testified. He is obviously interested in the outcome of the case, and you may consider that if you think it is appropriate. Understand that I'm not saying to you that you can just capriciously disregard someone's testimony because they might be interested in the outcome of the case. You don't do anything capriciously, but you may consider it if you think it is germane.

"Any bias or prejudice or anything you observe about a witness you may consider, if you think it would color the testimony. Contradictions in the testimony are all considered.

"If you think that someone has lied to you, if they told you a falsehood intentionally about a material fact in the case, there is an axiom of evidence that says you are entitled to disregard all of that witness' testimony. Again, if you think that they intentionally misled you about a material matter." (Emphasis supplied.)

Appellant contends that this charge was, in effect, a comment on the evidence implying that his testimony was untruthful and deprived him of the right to a fair trial. This Court does not agree.

In Banks v. State, 448 So.2d 973 (Ala.Cr.App.1984), this Court addressed the propriety of a charge nearly identical to that in the present case. In affirming the judgment of the trial court, we stated as follows:

"One of the duties of the trial court is to instruct the jury about the accused's testimony. This charge correctly states the law and the jury's duty and should be given in every case where the defendant testifies."

Id. at 977 (emphasis supplied).

IV.

The appellant argues that the trial court erred to reversal by admitting into evidence, over counsel's objection, numerous photographs and slides showing the...