Molton v. State

• Citation: 651 So.2d 663
• Parties: Reginald MOLTON v. STATE. CR 92-1614.
• Decision Date: 11 February 1994
• Court: Alabama Court of Criminal Appeals

Page 663

651 So.2d 663

Reginald MOLTON v. STATE.

CR 92-1614.

Court of Criminal Appeals of Alabama.

Feb. 11, 1994.

J. Scott Boudreaux, Birmingham, for appellant.

James H. Evans, Atty. Gen., and David Bjurberg, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

The appellant, Reginald Molton, was convicted of murder and was sentenced to 25 years' imprisonment. Two issues are raised on this appeal from that conviction.

I

The appellant contends that the trial court erred in refusing to give his written requested charge on criminally negligent homicide.

Demetrius Wiley, the State's only eyewitness, testified that he went to the appellant's apartment in Birmingham, Alabama, sometime after midnight on the morning of December 14, 1991. According to Wiley, he and the appellant were drinking beer and watching a televised basketball game when Rafael Heflin knocked on the door of the apartment. Wiley stated that he had known Heflin, who had had three children with one of Wiley's cousins, since he "was little," R. 89, and that he told the appellant that Heflin was related to him when the appellant asked Heflin who he was. Wiley testified that Heflin then asked the appellant, "Are you straight?" to which the appellant replied, "Yeah, I'm straight. I got dimes." R. 77.

The appellant and Heflin stepped into the kitchen. Although Wiley remained in the living room, he stated that he observed the appellant take two rocks of crack cocaine out of his pocket and hand them to Heflin, who "switched on him." R. 77. When asked to explain, Wiley said that Heflin "swapped fake dope for the real dope." Id. Wiley stated that when the appellant demanded that Heflin either pay him for the cocaine or return the rocks of cocaine that he had given Heflin, Heflin "hesitated about giving him the money" and the appellant "grabbed him," and "then they struggled." R. 79. Wiley said that during this struggle the appellant pulled a pistol and aimed at Heflin's face several times and attempted to shoot Heflin, but the gun did not fire. On "the fourth or fifth" attempt, the gun fired, hitting Heflin in the neck. R. 81. While the appellant and Heflin were struggling, Wiley heard Heflin tell the appellant a number of times not to shoot him and also heard the appellant tell Heflin several times to let him go.

Wiley stated that, after the appellant's gun fired, Heflin, holding his neck, bent over to pick up a rock of cocaine and "put it in his side corner pocket" before running out of the apartment. R. 83. As he was leaving, Heflin made a coughing sound and said, "Something's wrong with me." R. 84. According to Wiley, the appellant ran after Heflin and fired his gun as Heflin fled the apartment.

Heflin's body was discovered that afternoon in an alley approximately a half-block to a block away from the appellant's apartment. Dr. Robert Brissie, the forensic pathologist who performed the autopsy, testified that Heflin died from a gunshot wound to the neck. Dr. Brissie estimated that the fatal shot was fired from a distance of 7 to 15 inches from Heflin's body. A "small green ziplock bag with two bits of apparent rock-like white substance" was found in the right front pocket of Heflin's jeans. R. 46.

The appellant was charged with intentional murder as defined in Ala.Code 1975, § 13A-6-2(a)(1). At trial, he submitted written requested charges on self-defense; reckless manslaughter, see § 13A-6-3(a)(1); heat of passion manslaughter, see § 13A-6-3(a)(2); and criminally negligent homicide, see § 13A-6-4(a). C.R. 31-33. At the charge conference, the trial court stated that it would instruct the jury on self-defense and on heat of passion manslaughter, but that it was rejecting the appellant's requested charges on reckless manslaughter and criminally negligent homicide. Defense counsel assented to the trial court's decision regarding the charge on reckless manslaughter, but excepted to the court's refusal to charge on criminally negligent homicide and argued that the evidence supported such a charge. R. 131-32.

The State argues that because defense counsel stated, "Defense is satisfied," R. 145, at the conclusion of the oral charge, this issue was not properly preserved for appellate review. We cannot agree. In Williamson v. State, 570 So.2d 722, 722-23 (Ala.Cr.App.1990), reversed in part on other grounds, 584 So.2d 1289 (Ala.1991), defense counsel requested a charge on a lesser included offense, which was rejected by the trial court in a discussion held "prior to the oral charge." 570 So.2d at 722. During that discussion, defense counsel stated why he thought the requested charge should be given. On appeal, "[t]he State argue[d] that th[e] issue [of the trial court's refusal to give the requested charge] was not preserved because the appellant announced, at the close of the trial court's oral charge, that he was 'satisfied.' " Id. This Court held that the issue "was sufficiently brought to the trial court's attention [during the pre-charge discussion] and was preserved." Id. at 723. In the present case, defense counsel's objection made at the charge conference to the court's refusal to give the written requested charge was sufficient, under Williamson, to preserve the issue.

The State contends that Williamson is distinguishable from the present case because the trial judge in this case "indicated that he was open to changing his ruling," but the appellant did not again request an instruction on criminally negligent homicide. Appellee's brief at 10. The charge conference was held at the close of the State's case. As noted above, defense counsel excepted to the trial court's refusal to charge on criminally negligent homicide, then argued that the evidence warranted such a charge. After defense counsel's argument, the trial court stated:

"Unless there's something, and, I don't know yet what the defense is going to put on; unless there's some other evidence that might change my mind, I'll, of course, keep an open mind in that regard. This won't be the final ruling until I've heard everything. If there's something else you want to put on, I'll sure listen to it."

R. 132 (emphasis added). The trial judge's "indicat[ion] that he was open to changing his ruling" was clearly conditioned upon the appellant's presentating other evidence. The appellant rested almost immediately after this statement by the trial court and without presenting any additional evidence whatsoever. R. 133. Consequently, the trial court had "heard everything" at the time of its ruling at the charge conference and it was unnecessary for the appellant to renew his objection to the trial court's refusal to give the requested charge. See Williamson, 570 So.2d at 723. See also Norsworthy v. State, 542 So.2d 950, 952 (Ala.Cr.App.1989) (indicating that objection at charge conference to trial court's refusal to charge on lesser offense would have been sufficient to preserve issue).

In Sartin v. State, 601 So.2d 1142, 1146 (Ala.Cr.App.1992), this Court stated:

"To preserve th[e] issue [of the trial court's refusal to charge the jury on a lesser included offense] for appellate review, defense counsel must request, either orally or in writing, that the court give an instruction on a specific lesser included offense before ¹ the court's charge to the jury, and defense counsel must also object to the court's failure to include the requested lesser included offense charge at the close of the court's charge."

(Original emphasis deleted; current emphasis and footnote added.) The emphasized language of Sartin clearly conflicts with Williamson and is inconsistent with Rule 21.2, A.R.Crim.P., which requires only that objections to the trial court's oral instructions, including objections to the refusal to give a written requested instruction, be made "before the jury retires to consider its verdict." See H. Maddox, Alabama Rules of Criminal Procedure § 21.0 at 238 (Supp.1993) ("[i]f a defendant wishes to preserve the issue of the trial court's failure to instruct the jury on lesser included offenses, then defendant must specifically object at trial or the issue is waived") (emphasis added). While a specific objection made at the charge conference is sufficient to preserve the issue under Rule 21.2, it would not be sufficient to preserve the issue under Sartin. We therefore overrule Sartin to the extent that it conflicts with Williamson and we now specifically hold that where, as in this case, a defendant clearly objects at the charge conference to the trial court's refusal to give a written requested charge and states specific reasons for that objection, he is not required to renew his objection at the close of the oral instructions to preserve that issue for appellate review. Cf. Tillman v. City of Enterprise, 627 So.2d 1160, 1161 (Ala.Cr.App.) ("[a] ruling on a pretrial motion to suppress is sufficient to preserve the issue [of whether the evidence is admissible] for this Court's review and it renders it unnecessary for the appellant to object again when the evidence is offered and admitted at trial"), cert. denied, 627 So.2d 1162 (Ala.1993).

Having determined that this issue was properly preserved for appellate review, we now turn to the merits of the appellant's claim. Although the appellant did not testify or call any witnesses in his behalf, defense counsel's cross-examination of Wiley was clearly an attempt to elicit testimony to support a claim that the appellant acted either in self-defense or in the heat of passion, having been provoked by Heflin's "switching" of his drugs. ² The opening and closing arguments of counsel are not contained in the transcript; therefore we do not know the actual theory of defense relied on by the appellant.

It is clear that " 'a charge on a lesser included offense is not proper unless there is a reasonable theory from the evidence to support such a proposition.' " Isom v. State, 497 So.2d 208, 210 (Ala.Cr.App.1986) (quoting Clark v. State, 451...