Lovell v. State

• Decision Date: 14 April 1987
• Docket Number: 6 Div. 167
• Citation: 521 So.2d 1346
• Parties: James Andrew LOVELL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1346

521 So.2d 1346

James Andrew LOVELL v. STATE.

6 Div. 167.

Court of Criminal Appeals of Alabama.

April 14, 1987.

Rehearing Denied Sept. 8, 1987.

Certiorari Quashed April 1, 1988

Alabama Supreme Court 86-1624.

J. Louis Wilkinson and Virginia A. Vinson, of Wilkinson, Purvis & Vinson, Birmingham, for appellant.

Don Siegelman, Atty. Gen., and Rivard Melson, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant, James Lovell, was indicted for the offense of murder, and a mistrial was entered when the jury announced that they were unable to reach a verdict. Following a second trial, the appellant was found guilty of manslaughter and was sentenced to 10 years' imprisonment.

Ray Hill testified that he was a friend of the victim, Thomas Naples, and that on the day of the offense, they had gone to Inez's Lounge to drink, shoot pool, and retrieve a van which Hill had left there on the previous day. He testified that he and Thomas Naples had "a lot" to drink that day. The van which Hill had come to get would not start and, therefore, Hill and the victim hooked jumper cables to the van from the car which they had driven to Inez's Lounge on the date in question. He testified that they left the vehicle running and would walk "back and forth" between the bar and the parking lot. Hill testified that he began playing a game of pool with the appellant and that they made a $10.00 bet on the game. The game ended in an argument between Mr. Hill and the appellant. Approximately 15 minutes later, Hill walked outside to check on the van and the appellant thereafter walked outside demanding $10.00 that appellant claimed that Hill owed him from the bet on the pool game. Hill testified that when he refused to pay, the appellant "started to trying to demolish the inside" of Hill's vehicle, with a crowbar. Hill further testified that when he and the appellant exited the van, the appellant drew back the crowbar as if he intended to hit Hill. Hill stated that he was unaware of Thomas Naples's location at that time. The appellant turned and walked away, without hitting Hill. Hill testified that he did not recall seeing the appellant again that day. Hill also testified that thereafter he found Thomas Naples face down on the ground between the two vehicles. He testified that he attempted to "wake" the victim and when he was unable to do so, he walked to his truck, retrieved a gun, and fired into the air.

Robert White testified that he was at Inez's Lounge on the date in question. He testified that, in his judgment, Ray Hill had been drinking, while the appellant did not appear to have been drinking. White testified that he began to play a game of pool with the appellant. Thereafter, the appellant threw his stick, shouted that "the son-of-a-bitch owes me $10.00" and walked outside. Shortly thereafter, someone walked in the bar and stated that a fight or an argument was transpiring in the parking lot. White walked outside and observed Hill and the appellant arguing about money. He testified that they were not screaming and no profanity was being used; therefore, he said, he reentered the bar. Three or four minutes later, someone walked in the bar, stating that a fight had broken out in the parking lot. He walked back outside and observed the appellant hitting the side of a van with a crowbar. Hill was yelling at the appellant to stop hitting the truck, and White testified that he approached the appellant and asked him "not to tear the man's truck up." White then started to touch the appellant on the shoulder, whereupon the appellant pulled a knife on him. White further testified that Thomas Naples was in the van and asked Hill "to pay the man" or to let him pay the man. Thereafter, the appellant made a stabbing motion into the van and White ran back into the bar to call the police. White went back outside and observed the appellant beating the victim with a crowbar.

The appellant took the stand and testified that when he left the bar in order to collect the $10.00 that Hill owed him, Hill informed the appellant that he was not going to pay him. Thereupon, he said, Hill swung the jumper cables at the appellant. The appellant testified that he then departed in his truck. Appellant testified that he drove back to the bar after remembering that someone had accompanied him to Inez's and that he had also left some change on a table inside the Lounge. He further testified that he took a knife off his dashboard and put it in his pants before driving toward the front door. Appellant testified that as he approached the bar Hill and Naples threw something which hit the top of the appellant's truck. The appellant said he then took a crowbar from the back of his truck and walked up to Hill. He testified that he did not intend to hit Hill with the crowbar, but rather "to let them see that I had something in my hand." The appellant further testified that Thomas Naples was inside the van and started to get out with some sort of tool in his hand. The appellant testified that Naples "just came right at me out the door" and, therefore, the appellant swung the crow bar and hit him. Naples fell back in the van and thereafter told the appellant to walk around the side of the van and that he would give the appellant his money. The appellant further testified that when he walked around to the side of the van, Thomas Naples jumped out and hit him on the face and the head, took the bar from him, and stated that the appellant "was dead." The appellant further testified that he was stumbling back and pulled the knife out and that when he "came up with the knife" Naples was standing there and the knife pierced his body. The appellant said that when the victim fell, he quickly left the bar and attempted to leave town.

I.

The appellant argues that the trial court erred in failing to adequately charge the jury on self-defense. The record indicates that the following transpired during the trial court's oral charge to the jury: "The defendant has raised the defense of self-defense in this case and self-defense is a complete defense if proven." The defense counsel thereafter objected on the grounds that the trial court failed to charge the jury that there is no burden of proving self-defense on the accused. Subsequently, in response to some questions from the jury, the trial court further charged, in pertinent part:

"Now, self-defense is a complete offense or a complete defense to either murder or manslaughter if all of the elements of self-defense are there. Now, self-defense has been raised by the defendant, but the burden of proof is always on the State to prove the elements of murder and manslaughter beyond a reasonable doubt and to a moral certainty."

The appellant argues that the trial court's charge implied that the State has the burden of proving murder and manslaughter and that the defendant has the burden of proving self-defense. The State contends that any alleged error in the oral charge on self-defense is harmless because the appellant was not entitled to instructions on self-defense. We agree with the State. This court has previously held that where a portion of the trial court's oral charge pertaining to self-defense stated an incorrect proposition of the law, the error was nonetheless harmless under the facts of that case. Owen v. State, 418 So.2d 214 (Ala.Cr.App.1982). Rule 45, Ala.R.App.P. In Owen, this court held:

"The undisputed evidence shows that the defendant was not free from fault in bringing on the difficulty and that he was, in fact, the aggressor. He could not, therefore, set up the plea of self-defense. The error in the oral charge placing too great a burden on the defendant to establish self-defense was harmless. Ragsdale v. State, 134 Ala. 24, 32 So. 674 (1901); C. Gamble, McElroy's Alabama Evidence, Section 457.02(5)(a) (3rd ed. 1977)."

Id. at 223.

"Authority is abundant for the proposition that a person who enters willingly into a fight cannot rely on self-defense if he kills his adversary. Pair v. State, 33 Ala.App. 108, 31 So.2d 107, cert. denied, 249 Ala. 317, 31 So.2d 114 (1947); Key v. State, 27 Ala.App. 189, 168 So. 602 (1936); Turner v. State, 11 Ala.App. 1, 65 So. 719 (1914)." Payne v. State, 421 So.2d 1303, 1305 (Ala.Cr.App.), cert. quashed, 421 So.2d 1306 (Ala.1982). "[O]ne who claims justification in the use of force must not have brought on the necessity of using it; he must have been entirely free from fault." Section 13A-3-23 Commentary, Code of Alabama (1975). "To justify conduct through a claim of self defense, the accused must neither provoke nor encourage the difficulty. Moore v. State, 364 So.2d 411 (Ala.Cr.App.), cert. denied, 364 So.2d 416 (Ala.1978). Additionally, some form of retreat is required to establish a claim of self defense. Hambright v. State, 432 So.2d 13, 15 (Ala.Cr.App.1983)." Finchum v. State, 461 So.2d 37, 39 (Ala.Cr.App.1984). "In the absence of evidence warranting a finding both that the accused was in actual or apparent imminent peril and that he was unable to retreat, it is assumed that he was not in such peril and that he was able to retreat." C. Gamble, McElroy's Alabama Evidence, § 457.02(5)(b) (3d ed. 1977).

In the present case, there is no indication that the appellant was not free to retreat; further, it appears that he entered into the fight willingly. Therefore, the appellant could not rely on the theory of self-defense.

Moreover, the appellant claimed that he did not intend to kill Thomas Naples, nor did he intend to use the knife. He stated that Thomas Naples fell forward onto the knife as the appellant was "coming up." There is no legal defense of "accidental self-defense." Timmons v. State, 487 So.2d 975 (Ala.Cr.App.1986).

" 'We note that "self-defense and accident are inconsistent defenses, and the defendant alone may not provide the basis for submitting such inconsistent defenses to the jury." [State v.] Randolph, 496 S.W.2d at 262 [ (Mo.1973) ]; [State...