Leverett v. State, 1 Div. 649

• Decision Date: 14 August 1984
• Docket Number: 1 Div. 649
• Citation: Leverett v. State, 462 So.2d 972 (Ala. Crim. App. 1984)
• Parties: Paul F. LEVERETT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 972

462 So.2d 972

Paul F. LEVERETT v.STATE.

1 Div. 649.

Court of Criminal Appeals of Alabama.

Aug. 14, 1984.

Rehearing Denied Oct. 9, 1984.

Certiorari Denied Jan. 25, 1985

Alabama Supreme Court 84-95.

Irvin J. Langford of Howell, Johnston & Langford, Mobile, for appellant.

Charles A. Graddick, Atty. Gen. and P. David Bjurberg, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Under an indictment charging Leverett with the capital offense of the May 30, 1980, murder for hire of his wife in violation of § 13A-5-31(a)(7), Code of Alabama(1975)(Blue Paperback Pamphlet 1978)(repealed 1981), ¹ Leverett was convicted on May 2, 1983, of the offense of murder.He was sentenced to imprisonment for a term of life.

I

Leverett contends that the trial court erroneously instructed the jury on the offense of murder and, consequently, that the jury was not authorized to return a verdict of guilty of murder.He bases this contention on three grounds.He first argues that murder is not a lesser included offense of the capital offense of murder for hire which was charged in the indictment.This court has already suggested that murder is a lesser included offense of murder for hire.E.g.Williams v. State, 461 So.2d 834(Ala.Crim.App.1983)(on rehearing), cert. granted, 461 So.2d 852(Ala.1984);Busby v. State, 412 So.2d 837(Ala.Crim.App.), cert. denied (Ala.1982).The rationale for this conclusion is as follows:

"Four of the capital offenses in the 1975 Act[one being murder for hire] are based on the crime of murder in the first degree, which was defined as the willful, deliberate, malicious, and premeditated killing of a human being.This component of the capital offense clearly encompasses the Criminal Code definitions of murder, manslaughter, and criminally negligent homicide as lesser included offenses.The Criminal Code provides that a person commits murder if, with the intent to cause the death of another person, he causes the death of that person or of another person.Since a willful, deliberate, and premeditated act is necessarily an intentional act, the crime of murder is a lesser included offense because it can be shown by proof of the same or fewer elements than the capital offense."(footnotes omitted)

Colquitt, The Death Penalty Laws of Alabama, 33 Ala.L.Rev. 213, 262(1982).See alsoCrosslin v. State, 446 So.2d 675 n. 1(Ala.Crim.App.1983) (wherein murder was recognized as a lesser included offense of murder in the first degree wherein two or more human beings are intentionally killed by one or a series of acts in violation of § 13A-5-31(a)(10), Code of Alabama(1975)(Blue Paperback Pamphlet 1978).

Leverett further contends that, in the event murder is a lesser included offense, the trial court erroneously instructed the jury regarding this offense because of the preclusion clause of § 13A-5-31(a), Code of Alabama(1975)(Blue Paperback Pamphlet 1978);he argues that the application of Beck v. State, 396 So.2d 645(Ala.1980), violated the constitutional prohibition against ex post facto application of laws.U.S. Const. art. I, § 9.This particular argument has been foreclosed by the case of Ex parte Potts, 426 So.2d 896, 900(Ala.1983).

Finally, Leverett contends that the trial court's charge was erroneous because there was no rational basis for a verdict convicting him of murder as required by § 13A-1-9(b), Code of Alabama(1975);he insists that he could have only been found guilty of capital murder or not guilty at all.The merit of Leverett's assertion is determined by the following principles:

"The standard to be applied in this state is that in a capital case the jury must be instructed on each lesser-included offense which has 'any basis in the evidence.'Beck v. State, 396 So.2d 645 at 658(Ala.1980);Ex parte Kyzer, 399 So.2d 330(Ala.1981).A lesser-included offense instruction should be given if 'there is any reasonable theory from the evidence which would support the position.'Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367(1982);Chavers v. State, 361 So.2d 1106( [Ala.]1978);Fulghum v. State, 291 Ala. 71, 75, 277 So.2d 886, 890(1973).Our decisions are to the effect that 'Every prisoner at the bar is entitled to have charges given, which, without being misleading, correctly state the law of his case, and are supported by any evidence, however weak, insufficient, or doubtful in credibility.'(Emphasis added.)Gibson v. State, 89 Ala. 121, 8 So. 98(1889).See alsoBurns v. State, 229 Ala. 68, 155 So. 561(1934)."

Crosslin v. State, 446 So.2d at 682(1983).

After reviewing the evidence, we find that the trial court properly decided that the instruction on the lesser included offense of murder was appropriate under the facts.During presentation of its case, the prosecution introduced testimony in support of its theory that a conspiracy to kill Mrs. Leverett pursuant to a contract for hire existed between Leverett; Prewitt, ² who admitted killing Mrs. Leverett for the approximate sum of $11,000 paid by Leverett; and McEvoy, who sought out and hired Prewitt at Leverett's request.While this evidence alone, if credible, would have justified a verdict of guilty of the capital offense, further evidence was presented to support the theory that the murderer killed Mrs. Leverett during a robbery in which Mrs. Leverett's diamond ring valued at approximately $17,000 was stolen.The evidence in its entirety could reasonably have supported the theory that Leverett procured, induced, or caused Prewitt to commit the murder or, in the alternative, the theory that Leverett aided or abetted Prewitt in committing the offense.SeeBusby v. State, supra;Ala.Code, § 13A-2-23(1975).In fact, Leverett's counsel himself emphasized facts pertinent to the lesser offense of murder when he objected to the trial court's refusal to give the lesser-included offense instruction, as follows:

"MR. MARSAL: [T]he evidence is that a burglary was to be committed, and this evidence is borne out by the testimony of Steve Hart.Secondly, there is--

"THE COURT: Tie Mr. Leverett into that burglary.

"....

"MR. MARSAL: All right.By the testimony of Prewitt and McEvoy it ties him in....There's evidence to that effect....Prewitt--McEvoy says that Mr. Leverett gave the keys to the house.McEvoy says that he arranged with Prewitt.The act of McEvoy, if he's connected as an accomplice with Prewitt, comes the acts--I mean with Leverett, comes the acts of Leverett.There's unquestionably evidence that a robbery was to take the ring of Mrs. Leverett.I submit to the Court that there's just a mountainous of evidence as to why a jury should be an included offense."

Accordingly, we find that the lesser-included offense instruction was proper.

As a final comment, we note the difficulty in reconciling Leverett's argument with the position adopted by Leverett during his trial for, at trial, Leverett clearly invited the procedure which he now asserts to be reversible error.In addition to submitting written jury instructions stating that murder is a lesser included offense, Leverett vigorously argued that the lesser-included offense instruction was "certainly appropriate under the evidence."This assertion was in answer to the prosecution's argument that only the capital murder charge was appropriate.Furthermore, Leverett entered no objection that the court's charge was erroneous.

Hence, even if the given charge was improper, we would not regard Leverett's complaint as meritorious for he has no cause to complain.A party cannot assume inconsistent positions in the trial and appellate courts and, as a general rule, will not be permitted to allege an error in the trial court proceedings which was invited by him or was a natural consequence of his own actions.24A C.J.S.Criminal Law § 1842(1962).See alsoBrannon v. State, 12 Ala.App. 189, 67 So. 634, 635(1914), cert. denied, 191 Ala. 29, 67 So. 1007(1915);Livingston v. State, 7 Ala.App. 43, 61 So. 54, 57(1912)(on rehearing).As Presiding Judge Bowen noted in applying the invited error doctrine, "It would be a sad commentary upon the vitality of the judicial process if an accused could render it impotent by his own choice."Murrell v. State, 377 So.2d 1102, 1105(Ala.Crim.App.), cert. denied, 377 So.2d 1108(Ala.1979), quotingAldridge v. State, 278 Ala. 470, 179 So.2d 51, 54(1965).The doctrine of invited error has been specifically applied to possible error resulting from the defendant's request for a particular jury instruction.E.g.Jelks v. State, 411 So.2d 844, 848(Ala.Crim.App.1981);Burke v. State, 18 Ala.App. 152, 89 So. 162, 164(1921);People v. Clements, 316 Ill. 282, 147 N.E. 99(1925);Partee v. State, 19 Ga.App. 752, 92 S.E. 306(1917).In recognizing this doctrine as applicable to the case at bar, we hold that, because of Leverett's actions at trial, Leverett is estopped from complaining of any possible resulting error.

II

Over various objections, the trial court allowed into evidence the following: (1) McLeod's testimony concerning the instructions he received from McEvoy during their attempt to "rip-off" Leverett of the money he had offered for his wife's murder; (2) the testimony of Prewitt that McEvoy had said that the extra $1,000 of payment for the murder "was for a job well done;" and (3) the testimony of the forensic pathologist that the body of Mrs. Leverett "had more injuries than most of the victims that [he had] known or examined in which there was evidence that they had been robbed and then murdered."These matters were elicited by the prosecution in furtherance of proof of its theory that Mrs. Leverett had been killed pursuant to a contract for hire which was effectuated by a conspiracy between Leverett, McEvoy, and Prewitt.Leverett contends that (1) McLeod's testimony was hearsay because, at the time the instructions were given, no conspiracy existed; (2) the testimony of Prewitt was also hearsay since the...