Tucker v. State

• Decision Date: 23 November 1988
• Docket Number: 7 Div. 24
• Citation: 537 So.2d 59
• Parties: Danny Roland TUCKER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 59

537 So.2d 59

Danny Roland TUCKER v. STATE.

7 Div. 24.

Court of Criminal Appeals of Alabama.

Nov. 23, 1988.

Gary E. Davis, Centre and Charles A. McGee, Fort Payne, for appellant.

Don Siegelman, Atty. Gen., and Charles W. Hart III, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Danny Roland Tucker was convicted for the first degree murder of Crossville Police Officer Stevie L. Thompson. He was sentenced to life imprisonment, fined $20,000, and ordered to pay $666.50 in court costs and a victim's compensation fee of $2,000. Two issues are raised on this appeal from that conviction.

I

Tucker argues that the trial court should have granted his motion and dismissed the indictment because it charged two crimes in the same count and was so ambiguous that he could not determine what acts constituted the crime. We find that the motion to dismiss was properly denied.

At trial, the prosecution proved that, on the night of September 13, 1986, Crossville Police Officer Stevie L. Thompson was in uniform and on duty. Officer Thompson, driving a marked police patrol car, stopped the car driven by Willie Mae Tucker and arrested her for driving under the influence of alcohol. Danny Roland Tucker, who had been a passenger in the car driven by his stepmother, got out of the car. When Officer Thompson informed Tucker that he was under arrest for public intoxication, Tucker resisted and a struggle developed between the two men. The altercation ended when Tucker gained possession of the officer's pistol and shot him in the head.

Tucker was indicted in December of 1986. He was arraigned on January 6, 1987, and "granted leave to file additional pleadings or motions to the indictment within 10 days." On January 14th, Tucker filed his motion to dismiss. The issue now argued has been preserved for review by timely objection. Rule 16.3(a)(1), A.R.Cr.P.Temp., provides that such a motion must be made "at or before arraignment or by such later date as may be set by the court."

The charging portion of the indictment appears as follows:

"Danny Roland Tucker, whose name to the Grand Jury is otherwise unknown than as stated, did intentionally cause the death of Stevie L. Thompson, by shooting him with a pistol while the said Stevie L. Thompson was on duty as a Police Officer for the Town of Crossville, DeKalb County, Alabama, a Municipal Corporation, and Danny Roland Tucker knew that the said Stevie L. Thompson was on duty as a Police Officer, or because of the official or job related act or performance of the said Stevie L. Thompson as a Police Officer for the Town of Crossville, DeKalb County, Alabama, a Municipal Corporation, which official or job-related act or performance Danny Roland Tucker knew the said Stevie L. Thompson performed as a Police Officer, and which official or job-related act or performance was, to-wit: the act of arresting or attempting to arrest Willie Mae Tucker for the offense of Driving Under the Influence of Alcohol committed within the town limits of the Town of Crossville, DeKalb County, Alabama, a Municipal Corporation, or the act of arresting or attempting to arrest Danny Roland Tucker for the offense of Public Intoxication committed within the town limits of the Town of Crossville, DeKalb County, Alabama, a Municipal Corporation in violation of Section 13A-5-40(a)(5) of the Code of Alabama."

This indictment is based on § 13A-5-40(a)(5), Code of Alabama 1975, which, at the time of Tucker's indictment, read as follows:

"(a) The following are capital offenses: "

* * *

* * *

"(5) Murder of any police officer, sheriff, deputy, state trooper, federal law enforcement officer, or any other state or federal peace officer of any kind, or prison or jail guard, while such officer or guard is on duty or because of some official or job-related act or performance of such officer or guard." ¹

Reduced to its simplest wording the indictment charges that Tucker intentionally murdered Thompson "while ... Thompson was on duty as a Police Officer ... and ... Tucker knew ... Thompson was on duty as a Police Officer, or because of the official or job related act or performance of ... Thompson as a Police Officer ... which official or job-related act or performance ... Tucker knew ... Thompson performed as a Police Officer...." The indictment then describes the "official or job-related act or performance" as "the act of arresting or attempting to arrest Willie Mae Tucker for the offense of Driving Under the Influence of Alcohol ... or the act of arresting or attempting to arrest Tucker for the offense of Public Intoxication...."

"An indictment is sufficient which substantially follows the language of the statute, provided the statute prescribes with definiteness the constituents of the offense." Ex parte Allred, 393 So.2d 1030, 1032 (Ala.1981). "An indictment which pursues the language of the statute is sufficient, and a charge in the alternative does not make it bad." Murrell v. State, 44 Ala. 367, 369 (1870), overruled on other grounds, Langham v. State, 55 Ala. 114 (1876). See also § 15-8-23, Code of Alabama 1975.

The indictment in this case accurately conforms to the statutory language of § 13A-6-2(a)(1) defining intentional murder and of § 13A-5-40(a)(5) defining the capital murder of a peace officer. The indictment properly alleged Tucker's knowledge of Thompson's capacity as a police officer, even though the element was not set forth in § 13A-5-40(a)(5) before its 1987 amendment. An element of the offense defined by § 13A-5-40(a)(5), prior to its amendment, was that the defendant knew that the victim was a peace officer on duty. Ex parte Murry, 455 So.2d 72 (Ala.1984). See State of Alabama Criminal Code Indictment and Warrant Manual, 5-25, Alabama Law Institute (Revised 1988).

Subsection (a)(5) of § 13A-5-40 states only one offense despite its alternative language. The offense defined is the capital murder of a peace officer. That offense may be committed by the intentional killing of a peace officer (1) "while such officer is on duty" or (2) "because of some official or job-related act or performance."

The present situation is analogous to the case of Sisson v. State, 528 So.2d 1159, 1163 (Ala.1988), wherein our Supreme Court held that "driving 'under the influence of alcohol' and driving with '.10% or more by weight of alcohol in [one's] blood' are but one offense ... [which] can be proved by two alternative methods."

"When an offense may be committed by different means or with different intents, such means or intents may be alleged in an indictment in the same count in the alternative." § 15-8-50, Code of Alabama 1975. "An apparent purpose of these several provisions [§ 15-8-50, 51, 52] is to obviate the necessity of a multiplicity of counts, permitting one count to serve the purposes accomplished by several at common law...." Horton v. State, 53 Ala. 488, 492 (1875). The indictment was properly framed to conform to the proof. It charged only one offense--capital murder of a peace officer--which was committed for one of two reasons: either because the officer was trying to arrest Tucker's stepmother or because the officer was trying to arrest Tucker. This indictment completely satisfied the constitutional requirements of due process. Summers v. State, 348 So.2d 1126, 1132 (Ala.Cr.App.), cert. denied, Ex parte Summers, 348 So.2d 1136 (Ala.1977), cert. denied, 434 U.S. 1070, 98 S.Ct. 1253, 55 L.Ed.2d 773 (1978). See Davis v. State, 505 So.2d 1303, 1304 (Ala.Cr.App.1987) (operating a motor vehicle "while under the influence of intoxicating liquors or narcotic drugs"); Wilson v. State, 84 Ala. 426, 4 So. 383 (1888) (murder "by striking him in the head...