Owen v. State
| Decision Date | 21 August 1992 |
| Docket Number | CR-91-767 |
| Parties | Donald Lewis OWEN v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Glenn L. Davidson, Mobile, for appellant.
James H. Evans, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appellee.
The appellant, Donald Lewis Owen, was convicted of capital murder of a police officer while the officer was in the line of duty. He was sentenced to imprisonment for life without the possibility of parole.
This appeal is from a conviction in the appellant's third trial for this capital murder. The appellant was originally tried and convicted in 1981. This court affirmed that judgment. Owen v. State, 418 So.2d 214 (Ala.Cr.App.1982). As a result of a successful petition for habeas corpus filed in the Eleventh Circuit Court of Appeals, attacking the admission into evidence of the appellant's confession, the appellant was granted a new trial. Owen v. Alabama, 849 F.2d 536 (11th Cir.1988). A majority of this court affirmed the conviction resulting from the appellant's second trial. Owen v. State, 586 So.2d 958 (Ala.Cr.App.1990) (Bowen, J., dissenting). However, the Alabama Supreme Court reversed this court's judgment and remanded the appellant's case for a third trial based on Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). Ex parte Owen, 586 So.2d 963 (Ala.1991). In Powers, the United States Supreme Court held for the first time that a white defendant has standing to complain of a Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), violation in the selection of the defendant's jury. We now have no other choice than to reverse the appellant's third conviction on the basis of errors committed at trial that denied Owen a fair trial.
The state's evidence tended to show that around midnight on April 8, 1980, the appellant, Donald Lewis Owen, left work at Scott Paper Company in Mobile and stopped at a local bar. While at the bar he talked with his supervisor, danced with a lady friend, and drank four to eight beers. He left the bar and shortly before 2:00 a.m. was pulled over for speeding by Officer John Dotson of the Chickasaw Police Department. The summary of the events which followed is based on the appellant's testimony to mental health professionals. The evidence tended to show that the appellant shot Officer Dotson twice with a 12-gauge shotgun and then fled the scene. At approximately 2:30 a.m., other officers arrived on the scene and found Dotson on the ground with shotgun wounds to the right eye and abdomen. His weapon had been drawn and cocked, but not fired. Dotson died shortly thereafter as a result of the shotgun wounds.
The defense relied on evidence that the appellant was suffering from a mental disease or defect and as a result that he lacked "substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law." Section 13A-3-1, Code of Alabama 1975. Numerous experts gave testimony on the appellant's behalf as to the appellant's mental condition as it existed on April 8, 1980. Also, several family members testified that the appellant had been physically abused as a teenager and that that abuse had contributed to his instability. Further, several co-workers from Scott Paper Company described instances where the appellant had lost his temper.
I
The appellant alleges that the trial court erred in not giving the jury an instruction on intoxication. The record reflects that the jury was instructed on the lesser included offense of manslaughter as it relates to the defense of legal provocation. Section 13A-6-3(a)(2), Code of Alabama 1975. However, the jury was not instructed on the consequences of the appellant's intoxication. This issue was presented to this court in review of an earlier trial.
In his dissent from this court's affirmance of the appellant's conviction after his second trial, Judge Bowen stated:
Judge Bowen's reasoning and conclusion are right. When there is evidence of intoxication and the crime charged requires a specific intent, an instruction on the effects of intoxication and how it relates to any lesser included offense should be given. McNeil v. State, 496 So.2d 108 (Ala.Cr.App.1986)
There was evidence presented in this case that the appellant had consumed as many as eight beers within a two-hour...
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