McConnico v. State

• Decision Date: 30 December 1988
• Docket Number: 6 Div. 657
• Citation: 551 So. 2d 424
• Parties: Donald McCONNICO v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 424

551 So.2d 424

Donald McCONNICO v.STATE.

6 Div. 657.

Court of Criminal Appeals of Alabama.

Dec. 30, 1988.

Rehearing Denied Aug. 25, 1989.

Certiorari Denied Nov. 3, 1989

Alabama Supreme Court 88-1552.

Arthur Green, Jr., of Green, Armstrong & Bivona, Bessemer, for appellant.

Don Siegelman, Atty. Gen. and P. David Bjurberg, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant was indicted by the Jefferson County grand jury for murder, in violation of § 13A-6-2, Code of Alabama(1975).The appellant was convicted of murder and was sentenced to a term of 30 years' imprisonment.

The appellant's sole contention is that the trial court erred in refusing to charge the jury as to the lesser included offenses of manslaughter and criminally negligent homicide.This Court finds that there was sufficient evidence which, if believed by the jury, would have reasonably supported a conviction for the lesser included offense of manslaughter.

The record of this case showed that, at about 8:00 p.m. on May 31, 1986, Officer Phillip Coker received a radio dispatch instructing him to proceed to a residence in Bessemer.Upon arriving and approaching the front door, Officer Coker and his partner, Officer Larry Waldrop, observed a black female, later identified as Brenda Green, lying on the floor, with the appellant on his hands and knees bent over her.A revolver was lying beside the victim.Officers Coker and Waldrop entered the house and instructed the appellant to move away from the victim.Officer Coker testified that the appellant stated that he and the victim were fighting, and that she got shot.The appellant was placed in a police car and given his Miranda rights by Officer Coker, who testified that the appellant had alcohol on his breath but did not slur his speech and was not unsteady on his feet.When asked what had happened, the appellant stated that he had just come home, and that he and the victim, who had a gun, had argued about where he had been.The appellant told Officer Coker that the victim shot at him and chased him to the front of the house, where another confrontation occurred.The appellant stated that he turned and grabbed the gun, that the victim and he wrestled with it, and that the victim got shot.

Sergeant Roddy Howell testified that he was in charge of the investigation of this incident.Howell testified that he observed a beer can on a table in the room where the shooting took place.Howell further testified that he saw the appellant at the Bessemer Police Department approximately 2 hours after the shooting had occurred, and that at that time he smelled of alcohol and slurred his speech.

William Shepherd testified on behalf of the appellant that he and the appellant left work together between 2:30 p.m. and 3:00 p.m. on the afternoon of the shooting.At this time, he said they and three other co-workers purchased a case and a half of "tell" Budweiser, and went to Joe Bonner's house to drink beer and watch television.Shepherd stated that they dropped the appellant off at the house which the victim and he shared, sometime between 6:00 p.m. and 6:30 p.m., and that he did not know whether the appellant was intoxicated at that time.

The criteria for determining what is a lesser included offense is set forth in § 13A-1-9, Code of Alabama(1975), which states in pertinent part as follows:

"(a)A defendant may be convicted of an offense included in an offense charged.An offense is an included one if:

"(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or

"....

"(4) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission.

"(b)The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense."(Emphasis supplied.)

In Allen v. State, 546 So.2d 1009(Ala.Cr.App.1988), this Court held the following concerning jury charges on lesser included offenses:

"A defendant is entitled to a charge on a lesser included offense if there is any reasonable theory from the evidence that would support the position.Ex parte Oliver, 518 So.2d 705, 706(Ala.1987);Chavers v. State, 361 So.2d 1106(Ala.1978);Fulghum v. State, 291 Ala. 71, 277 So.2d 886(Ala.1973);Williams v State, 474 So.2d 178(Ala.Cr.App.1985).An accused is entitled to have the court charge on lesser included offenses where there is a reasonable theory from the evidence to support his position 'regardless of whether the State or the defendant offers the evidence.'Pruitt v. State, 457 So.2d 454, 457(Ala.Cr.App.1984), cert. denied, Ex parte Pruitt, 457 So.2d 456(Ala.1984), citingChavers, supra.Every accused is entitled to have charges given which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, or doubtful in credibility.Ex parte Stork, 475 So.2d 623(Ala.1985);Anderson v. State, 507 So.2d 580, 583(Ala.Cr.App.1987)."

Id. at 1012.

In Phelps v. State, 435 So.2d 158(Ala.Cr.App.1983), this Court held the following:

"The 'safer' practice is to charge upon all degrees of homicide: '[I]t is much the safer rule to charge upon all the degrees of homicide included in the indictment, when a party is on trial for murder, unless it is perfectly clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree.'Pierson v. State, 99 Ala. 148, 153, 13 So. 550(1892), approved inWilliams v. State, 251 Ala. 397, 399, 39 So.2d 37(1948)."

Id. at 163.

In the instant case, the appellant was convicted of murder under § 13A-6-2(a)(1), Code of Alabama(1975), which states as follows:

"(a) A person commits the crime of murder if:

"(1) With intent to cause the death of another person, he causes the death of that person or of another person...."

The elements of manslaughter under the particular facts of this case are set forth in § 13A-6-3(a)(1), Code of Alabama(1975), which provides that:

"(a) A person commits the crime of manslaughter if:

"(1)He recklessly causes the death of another person...."

Because manslaughter...