Matkins v. State

• Citation: 497 So.2d 194
• Decision Date: 12 November 1985
• Docket Number: 8 Div. 1
• Parties: Randy Lee MATKINS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 194

497 So.2d 194

Randy Lee MATKINS v. STATE.

8 Div. 1.

Court of Criminal Appeals of Alabama.

Nov. 12, 1985.

Rehearing Denied Jan. 28, 1986.

Phillip B. Price, Huntsville, for appellant.

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

George Hugh Jones of Parker & Dawson, Birmingham, amicus curiae on behalf of appellant.

LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence on a trial by jury on an indictment charging defendant with murder as proscribed by Alabama Criminal Code, § 13A-6-2(a)(1) and (2), a Class A felony. At the sentence hearing, it was shown that defendant had been previously convicted of at least three felonies, and the court sentenced him to imprisonment for life without parole pursuant to the Habitual Felony Offender Act, particularly § 13A-5-9(c)(3).

Although four separate issues are presented in brief of counsel for appellant, the pivotal issue between the parties on appeal is whether the trial court was in error in not charging the jury as to whether it could or should return a verdict finding defendant guilty of a lesser included offense, specifically manslaughter, as defined by § 13A-6-3 or criminally negligent homicide, as defined by § 13A-6-4.

Although it seems that counsel for appellee does not contend that the evidence in the case failed to furnish a basis for jury determination that defendant was guilty of either of the two lesser offenses only, we think it appropriate to give a brief summary of the pertinent evidence, which is found in brief of counsel for appellee as follows:

"On Christmas night, 1982, while he was on leave from the State penitentiary, Randy Lee Matkins shot James Willie 'Skip' Askins in the face and killed him. Matkins testified that he sat down at a table at the Huntsville VFW Club with several people in an empty chair and that Skip's wife, Delores came up and told him that he was in her seat. Matkins ignored her and Skip, who was in the seat next to Matkins, told Matkins that Delores was his wife. Matkins did not say anything and Skip told him again that he was in Delores's seat. Matkins asked Skip 'Are you trying to get smart?' and Skip said, 'No.'

"Matkins had a .32 automatic pistol in his pocket. Matkins stood up and took his pistol out of his pocket.

"Matkins testified that he intended 'to fist fight' and that he wanted to 'pass it to Linda,' but that the gun discharged when Skip and Dean Askins, Skip's brother jumped him, accidentally hitting Skip in the face.

"Other witnesses had testified that Matkins just reached out and shot Askins and that there was no scuffle. Each of the witnesses who were sitting at the table with Skip and Matkins testified that Matkins pointed the pistol at Skip and fired and then ran out of the club. Matkins was serving time for second degree murder at the time of Skip's death. He had also been convicted of assault with intent to murder and theft. Matkins had drunk about a 'fifth and a half' of liquor that day."

According to the testimony of the defendant, he went to the VFW Club at "about 10:30 that night," that Linda Batts, whom he was dating during this period of time, was at the club, that he sat down on the bench close to Linda, to which the victim's wife, Delores, approached and an argument then ensued between him and the victim, and the defendant then prepared for a fist fight with the victim. His testimony continues in part as follows:

"Q. All right. What did you do with the pistol?

"A. I took it out with my left hand and I passed--

"Q. Where did you take it out from?

"A. Off my side with my left hand. I had a brown sweater on. I took the pistol out with my left hand and I put it in my right hand and I was intending to pass it to Linda.

"Q. You were handing the pistol to Linda?

"A. I was intending to, but when I passed--

"Q. Just a minute. Why were you handing the pistol to Linda?

"A. To fist fight.

"...

"Q. Did you intend at that time to get into a fist fight?

"A. At the present time, yes, sir.

"Q. Tell the Jury what happened next.

"A. Well, after I placed it in my right hand, before I could make a turn and hand it to Linda--she was on my right-hand side. Before I could make a turn and hand it to her he had jumped up and grabbed me.

"Q. Where did he jump up from?

"A. From the corner of the table where he was sitting.

"...

"Q. What happened next?

"A. After I made it to my right hand that's when James Willie Askins jumps up and grabs me. He grabbed my right hand, the one I had the pistol in, and me and him then scuffled two [or] three minutes.

"Q. Tell the jury what you mean by scuffle?

"A. Turning and twisting and one trying to keep possession and one trying to take possession, to get a better position.

"Q. Were you all actually in a fight?

"A. It was more of a situation to get ready for a fight.

"Q. Did you see Dean Askins?

"A. He entered the scuffle. I didn't know who he was. All I know is a third party entered the scuffle. Me and James Willie was scuffling around and this third party he entered the scuffle. When he entered the scuffle we started scuffling around again for two or three more minutes and then we fall back from the table, or back up toward the bench behind the table. We fall back that way. As we was falling back that's when the gun discharged.

"Q. Did you have your finger on the trigger?

"A. No, sir. I didn't.

"Q. Do you know who did?

"A. No, sir, I can't say.

"Q. Did you intend to shot [sic] James Willie Askins?

"A. No, sir. I didn't have any intentions for no one to be hurt."

In addition to the disagreement between counsel for appellant and counsel for appellee as to the pivotal issue, there is disagreement between them as to the effect of Rule 14 of the Alabama Rules of Criminal Procedure, effective July 16, 1982, which was prior to the date of the trial in the instant case, and which rule is taken almost verbatim from Rule 51, Alabama Rules of Civil Procedure. Attorneys for the Alabama Criminal Defense Lawyers Assocation joined with counsel for appellant as amicus curiae in stating and arguing the following proposition:

"RULE 14, A.R.Cr.P. NEGATES THE REQUIREMENT THAT REQUESTED CHARGES FOR A LESSER INCLUDED OFFENSE BE MADE IN WRITING AT THE CHARGE CONFERENCE TO PRESERVE ERROR FOR REVIEW BY OBJECTING AND STATING GROUNDS PRIOR TO THE JURY BEGINNING ITS DELIBERATIONS."

Reliance is had upon what was held in Gardner v. Dorsey, Ala., 331 So.2d 634, 636, as follows:

"The purpose of stating grounds for objections is to give the trial court an opportunity to correct the instructions and to avoid the waste of time and money from reversals that result from oversight, technical omissions, or remedial mistakes. New Orleans & Northeastern R. Co. v. Hewitt Oil Co., 341 F.2d 406, (5th Cir. 1965). ..."

The transcript of the proceedings in the case sub judice shows that at the conclusion of the argument of counsel the following occurred:

"Ladies and Gentlemen, I realize that it is after five, but I believe that my charge will be relatively short and I think that I will go ahead and charge you now.

"MR. PRICE [Defendant's attorney]: Your Honor, may I approach the bench?

"THE COURT: Yes.

"(The following occurred at the bench.)

"MR. PRICE: I specifically make a request in the record that there be a charge by the court on the lesser included offenses of manslaughter as well as negligent homicide; that the facts support a charge on both two lesser included offenses..

"THE COURT: All right."

At the conclusion of the court's oral charge, the following also occurred "out of the presence of the jury":

"MR. PRICE: At this time, at the conclusion of the Court's Charge, we object to the Court's failure to give the charges on the lesser included offenses of manslaughter and negligent homicide, in that the facts have brought out evidence that would warrant such charges.

"(Whereupon, the Court adjourned for the day.)"

Without further endeavor by us to assay the positions taken by the attorneys who have filed briefs as to the effect of Rule 14 of the Rules of Criminal Procedure upon the pivotal issue on appeal, we conclude that under the circumstances of what transpired as between the trial judge and defendant's counsel, particularly the oral request by defendant's counsel that the trial judge charge "on the lesser included offenses" designated, as well as the objection of defendant's counsel to the "Court's failure to give the charges on the lesser included offenses," the trial court committed error prejudicial to defendant in not instructing the jury as to said lesser included offenses. The judgment of the trial court should be reversed and the cause remanded.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REVERSED AND REMANDED.

PATTERSON, TAYLOR and TYSON, JJ., concur.

BOWEN, P.J., concurs specially with McMILLAN, J., joining.

BOWEN, Presiding Judge, concurring specially.

I concur in the result reached by the majority but would address the application of Rule 14, A.R.Crim.P.Temp. to the facts of this case. I see no advantage to be gained by leaving everyone in limbo to await some further decision by this Court or the Alabama Supreme Court.

Rule 14 provides for the proper method of objecting to either the refusal of a written requested charge or the giving of an improper oral charge:

"No party may assign as error the court's giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection. Submission of additional explanatory instructions shall not be required unless requested by the court. ...