Tucker v. State
Decision Date | 17 June 1994 |
Citation | 650 So.2d 534 |
Parties | Renard TUCKER v. STATE. CR 93-58. |
Court | Alabama Court of Criminal Appeals |
Richard A. Storm III, Birmingham, for appellant.
James H. Evans, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for appellee.
The appellant, Renard Tucker, was indicted for the murder of Melvin Johnson during a robbery in the first degree or an attempt thereof, a capital offense defined in Ala.Code 1974, § 13A-5-40(a)(2). A jury found him guilty of murder and the circuit court sentenced him to life imprisonment. On this appeal of that conviction, he raises five issues.
The appellant claims that the State's evidence was insufficient.
State's witnesses Kelly Watson and Lune Carlos Brown were eyewitnesses to the killing. Ms. Watson testified that on the morning of April 29, 1992, she saw three people approach the victim. Those three people were Adero ("Yab") Pearson, "Yab's" brother "Naw Naw," and the appellant. Ms. Watson testified that "Yab" pulled a gun and the victim began to back up. Then Ms. Watson heard the appellant say, "[S]hoot that bitch, you know, shoot him." R. 159. She said that she saw the victim "pulling off his jewelry," and that she heard him say, "[P]lease don't do that." R. 158. Ms. Watson testified that the appellant and "Naw Naw" were "picking up the [victim's jewelry]" as the victim was "walking backwards," R. 160, 161. Ms. Watson stated that the victim fell over a wall and was on the ground when "Yab" shot him in the stomach. R. 162-63.
Lune Carlos Brown testified that he saw only two individuals--"Yab" and the appellant--approached the victim. Brown said that the appellant had a gun. Brown heard the appellant say to the victim, "[G]ive it up, give it up, I know you got some more, give it up." R. 291. According to Brown, when the victim replied, "[T]hat's it, that's all of it, that's all of it," the appellant shot him. R. 292, 293.
Edmond Griffin, the brother of Lune Carlos Brown, testified that in May or June 1992, he was in the juvenile detention center and that the appellant was also in the detention center at that time. Griffin stated that while he and the appellant were in the detention center, the appellant told him that he (the appellant) "shot the dude in the stomach and ... was going to say Lune did it." R. 256.
Each of these three witnesses for the State was impeached in just about every way a witness can be impeached. Ms. Watson, who admitted that she smoked marijuana for her "bad eyes" (R. 172), had made several prior inconsistent statements about the shooting. Brown, who was Ms. Watson's live-in boyfriend, admitted that he had a prior conviction for assault in the first degree and that he was on probation in another "case". R. 306. He acknowledged that at the time of trial he was in jail for "[p]robation violation and possession of uncontrolled [sic] substance." Id. Griffin was impeached with several prior inconsistent statements and with the fact that he had been in juvenile detention for "drugs." R. 252.
"The manifest unworthiness and the impeachment of these ... witnesses thus shown, ... does not, under the rules of evidence, vitiate, nullify, or render incompetent the testimony given by them upon the trial." Gladden v. State, 23 Ala.App. 416, 417, 125 So. 398, 399 (1930). "The weight and probative value to be given to the evidence, the credibility of the witnesses and the resolution of conflicting testimony are for the jury's determination." Brown v. State, 588 So.2d 551, 559 (Ala.Cr.App.1991).
Jones v. State, 469 So.2d 713, 716-17 (Ala.Cr.App.1985), quoted in Poole v. State, 650 So.2d 541, 543 (Ala.Cr.App.1994).
The appellant claims that he was entitled to a jury instruction on the lesser included offense of manslaughter because, he says, there was a reasonable theory from the evidence that the victim's death was the result of a provocation or was the result of recklessness.
"This argument fails because an unintentional killing during the course of a robbery is, nevertheless, first degree murder under the felony-murder doctrine, and the evidence was undisputed that ... [the] victim [was killed] during the course of ... [a] robb[ery]." Coulter v. State, 438 So.2d 336, 344 (Ala.Cr.App.1982), aff'd, 438 So.2d 352 (Ala.1983).
The appellant was also not entitled to have the jury charged on the lesser included offense of robbery. Because there was a killing in the course of and in furtherance of a robbery, "[i]t is clear ... that the appellant is at least guilty of felony murder." Kinder v. State, 515 So.2d 55, 72 (Ala.Cr.App.1986).
The appellant argues that the trial court's oral charge on felony murder was confusing and misleading. He also asserts that the court made an impermissible comment on the evidence when it gave the following example of felony murder:
After the jury had been deliberating for some time, it requested that the trial court reinstruct it on "the elements of the offenses of capital murder and murder." R. 568. The court correctly redefined those crimes and then stated:
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