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Docket Number

6 Div. 53.

Attorney(S)

Thomas B. Hanes and Daniel D. Sparks of Hanes Cotton, Birmingham, for appellant. Charles A. Graddick, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for appellee.

Judges

BOWEN, Presiding Judge.

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Smart Summary

Case Summary: Larry John Johnson v. State (Court of Criminal Appeals of Alabama, Oct. 14, 1986)

Factual and Procedural Background

Larry John Johnson was convicted of manslaughter in the death of Nancy Nails and was sentenced to life imprisonment as a habitual offender. The appeal is from the Circuit Court of Jefferson County (Judge James H. Hard, IV). On appeal, Johnson challenged the trial court's refusal of requested jury charges numbered 3, 4, 5, 6, and 7, which concerned circumstantial evidence, permissible inferences and deductions, and the burden of proof.

The opinion indicates that some of the State's proof was circumstantial (relating to arson and rape, crimes for which the defendant was neither indicted nor convicted), but that evidence of the homicide itself came from the defendant's own statement in which he admitted a pistol discharged during a struggle with the victim. The trial court refused the defendant's written requested charges numbered 3–7 and the conviction and sentence were affirmed on appeal.

Legal Issues Presented

Whether the trial court erred in refusing requested jury charges (Nos. 3–7) concerning circumstantial evidence and the burden of proof.
Whether the trial court's oral charge fairly and substantially covered the legal principles stated in the refused requests (particularly charges 3, 6, and 7).
Whether requested charges that accurately state legal propositions (charges 4 and 5) were nevertheless properly refused because of the particular facts of this case (i.e., evidence not being entirely circumstantial).

Arguments of the Parties

Appellant's Arguments

The trial judge erred by refusing requested charges 3, 4, 5, 6, and 7, which addressed circumstantial evidence, permissible inferences, deductions, and the burden of proof.

The opinion does not contain a detailed account of the appellee's (State's) responsive arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wabbington v. State, 446 So.2d 665, 669-70 (Ala.Cr.App. 1983), cert. denied, 467 U.S. 1254 (1984)	Support for the trial court's statement addressing circumstantial evidence: that a person should not be convicted unless the evidence excludes to a moral certainty every reasonable theory except guilt.	The court found the substance of requested charges 3, 6, and 7 fairly and substantially covered by the trial judge's oral charge, citing the Wabbington formulation as consistent with the oral instruction given.
Tyson v. State, 361 So.2d 1182, 1188 (Ala.Cr.App. 1978)	"The oral charge need not state the legal principle exactly as it appears in the requested charge. The principle ... need only be fairly and substantially covered."	Used to justify refusal of written charges 3, 6, and 7 because their substance was fairly and substantially covered by the court's oral charge.
Ray v. State, 248 Ala. 425, 429, 27 So.2d 872 (1946)	General principle that a judge should not give undue prominence in oral instructions to any aspect of the case.	The court noted the judge charged on the subject before closing arguments and observed that the separate charge in this posture actually worked to the defendant's benefit rather than creating undue prominence.
Ex parte Chavers, 361 So.2d 1106, 1108-09 (Ala. 1978)	A requested charge is improper if it uses the term "all reasonable doubt."	Applied to affirm the refusal of requested charge No. 3 because it used the disfavored phrase "all reasonable doubt."
Ex parte Williams, 468 So.2d 99, 101 (Ala. 1985) (quoting Thomas v. State, 363 So.2d 1020 (Ala.Cr.App. 1978))	Recognition that certain formulations about inferences and speculation are correct legal propositions (as set out in Williams and Thomas).	The court acknowledged that requested charges 4 and 5 contain correct propositions of law as reflected in Williams/Thomas, but still found refusal proper given the facts of this case.
Knight v. State, 273 Ala. 480, 490, 142 So.2d 899 (1962)	Statements of law in judicial opinions are not always proper for jury instructions; language lifted from an opinion is not automatically a correct instruction.	Used to support the proposition that correct appellate statements do not automatically require being given as jury charges in a particular case.
Vincent v. State, 399 So.2d 923, 927 (Ala.Cr.App. 1981)	Similar principle that appellate expressions of law are not necessarily proper jury instructions in other cases.	Reinforced the court's refusal to require trial courts to adopt language from opinions as jury charges.
Rolls v. State, 35 Ala. App. 283, 287, 46 So.2d 8 (1950)	It is a mistake to suppose that expressions in judicial opinions can serve as clear, succinct statements of the law in special charges to the jury.	Quoted in support of the court's caution about using appellate language verbatim as jury instructions.
Wear v. Wear, 200 Ala. 345, 348, 76 So. 111, 114 (1917)	Reiterates that expressions in judicial opinions should not be assumed to be suitable as special jury charges.	Quoted to bolster the court's position that correct appellate language is not always proper for trial instructions.
Scruggs v. State, 380 So.2d 308, 312 (Ala.Cr.App. 1979), cert. denied, Ex parte Scruggs, 380 So.2d 313 (Ala. 1980)	An appellate statement of law is correct but does not necessarily follow that it should be given by the trial court to the jury.	Supported the court's discretion in refusing to give charges couched in appellate language when not appropriate to the case facts.
Buckles v. State, 291 Ala. 352, 355, 280 So.2d 814 (1972)	Where an applicable legal principle is sound and clearly established, the jury may properly be instructed on that law.	Served as a caveat that trial courts should instruct juries on well-established law when appropriate; court balanced this against the facts here.
Blalock v. State, 369 So.2d 35, 38 (Ala.Cr.App. 1979), cert. denied, Ex parte Blalock, 369 So.2d 38 (Ala. 1979)	"Often a charge which is a correct statement of the law is properly refused because the facts of the case do not specifically require it."	Applied to explain that even correct charges may be refused when the facts do not demand them; used to justify refusing charges 4 and 5.
Johnson v. State, 55 Ala. App. 581, 588, 317 So.2d 548 (1975)	Requested charges concerning circumstantial evidence are properly refused where not all of the State's case is derived from circumstantial evidence and where the requested charges do not call for consideration of all the evidence.	Directly applied to this case to support refusal of the defendant's circumstantial-evidence charges because the prosecution's proof was only partly circumstantial.
McCoy v. State, 170 Ala. 10, 54 So. 428 (1911)	Historical authority recognizing limits on circumstantial-evidence charges.	Listed as additional supporting authority for the proposition that circumstantial-evidence instructions are inappropriate when the case is not purely circumstantial.

Court's Reasoning and Analysis

The court conducted a focused analysis on each group of requested charges and on whether the trial court's oral charge adequately covered the principles the defendant sought to present.

Charges Nos. 3, 6, and 7: The court concluded the substance of these charges was "fairly and substantially covered" by the trial judge's oral charge. The opinion quotes the trial judge's instruction that "a person charged with a criminal offense should not be convicted unless the evidence excludes to a moral certainty every reasonable theory except that of the defendant's guilt" and relies on precedent (including Wabbington and Tyson) establishing that an oral charge need not mirror requested language verbatim so long as the principle is fairly and substantially covered.
Timing and emphasis: The court observed the judge charged the jury on the relevant principles immediately before closing arguments. While generally a judge should avoid giving undue prominence to any aspect of the case (citing Ray), in this instance the separate charge worked to the defendant's benefit by emphasizing his basic rights.
Specific defect in Requested Charge No. 3: Even assuming the substance was covered, the court also affirmed refusal of charge No. 3 on an independent ground: it used the phrase "all reasonable doubt," a formulation condemned by Ex parte Chavers, making that written charge improper.
Charges Nos. 4 and 5: The court acknowledged these charges contained correct legal propositions (citing Ex parte Williams and Thomas). However, it emphasized that correct statements found in judicial opinions are not necessarily proper jury instructions simply because they appear in opinions (citing Knight, Vincent, Rolls, Wear, Scruggs). The court further distinguished Williams on the pivotal factual ground that Williams involved an entirely circumstantial case, whereas in Johnson the evidence was only partly circumstantial (as conceded by the defendant in his brief). The court noted that the circumstantial evidence in this case related to arson and rape (offenses for which the defendant was not charged), while the evidence of the homicide was the defendant's own statement admitting that a pistol discharged during a struggle.
Application of circumstantial-evidence principles: Relying on the principle that a correct charge may be refused when the facts do not require it (Blalock), and on authority holding that circumstantial-evidence charges are inappropriate when the prosecution's case is not wholly circumstantial and when the requested charge fails to require consideration of all the evidence (Johnson v. State; McCoy), the court held it was proper to refuse charges 4 and 5.

Holding and Implications

AFFIRMED.

Holding: The Court of Criminal Appeals affirmed the judgment of the circuit court — the conviction for manslaughter and the life sentence as a habitual offender stand.

Implications: The direct effect is that the trial court's refusal of the requested charges (3–7) did not require reversal. The court determined that (a) the trial court's oral charge fairly and substantially covered the substance of requested charges 3, 6, and 7; (b) requested charge 3 also was defective in form for using "all reasonable doubt"; and (c) requested charges 4 and 5, though stating correct legal propositions, were properly refused because the facts did not require those specific instructions (the case was not entirely circumstantial and the defendant's statement provided direct evidence of the homicide). The opinion does not announce or purport to establish a new rule of law beyond applying existing precedent to these facts.

All judges concurred in the opinion.

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Larry John JOHNSON v. STATE.

BOWEN, Presiding Judge.

Larry John Johnson was convicted of manslaughter in the death of Nancy Nails and sentenced to life imprisonment as a habitual offender.

On appeal, Johnson argues that the trial judge erred in refusing requested charges 3, 4, 5, 6, and 7 dealing with circumstantial evidence, inferences, deductions, and the burden of proof.

The charges requested by the defendant were:

"REQUESTED CHARGE NO. 3

"The test of the sufficiency of circumstantial evidence is whether the circumstances, as proved, produce a moral conviction, to the exclusion of all reasonable doubt, of the guilt of the Defendant, (whether they are incapable of explanation upon any reasonable hypothesis consistant with the Defendant's innocence). There should not be a conviction upon circumstantial evidence unless, to a moral certainty, it excludes every other reasonable hypothesis than that of the guilt of the accused. No matter how strong may be the circumstances, if they can be reconciled with the theory that the Defendant is innocent then the guilt of the accused is not shown by that full measure of proof the law requires, and the Defendant should be acquitted."

"REQUESTED CHARGE NO. 4

"I charge you that, while a jury is under a duty to draw whatever permissible inferences it may from the evidence, including circumstantial evidence, mere speculation, conjecture, or surmise that the Defendant is guility [sic] of the offense charged does not authorize a conviction. A Defendant should not be convicted on mere suspension [sic] or out of fear that he might have committed the crime. While reasonable inferences from the evidence may furnish a basis for proof beyond a reasonable doubt, mere possibility, suspension [sic], or guesswork, no matter how strong, will not overturn the presumption of innocence."

"REQUESTED CHARGE NO. 5

"An inference is merely a permissible deduction from the proven facts which the jury may accept or reject or give such probative value to as it wishes. It is a logical and reasonable deduction from the evidence and is not supposition or conjecture. Guesswork is not a substitute. A supposition is a conjecture based on the possibility or probability that a thing could have or may have occurred without proof that it did occur. The possibility that a thing may occur is not alone evidence, even circumstantially, that the thing did occur."

"REQUESTED CHARGE NO. 6

"I charge you, the jury, that the State has presented circumstantial evidence in order to prove the guilt of the Defendant. Circumstantial evidence may be used to support a finding of guilt if the evidence is so strong and cogent as to show Defendant's guilt to a moral certainty and the circumstances producing the moral certainty of the accused guilt are incapable of explanation on any reasonable hypothesis."

"REQUESTED CHARGE NO. 7

"I charge you, the jury, that the humane provisions of the law are, that a defendant charged with a felony, should not be convicted on circumstantial evidence, unless it shows by a full measure of proof, that the defendant is guilty. Such proof is always insufficient, unless it excludes, to a moral certainty, every other reasonable hypothesis, but that of the guilt of the accused. No matter how strong the circumstances, if they can be reconciled with the theory that the defendant acted in a manner permitted by the law, then the defendant is not shown to be guilty, by that full measure of proof which the law requires."

The substance of requested charges numbers 3, 6, and 7 were fairly and substantially covered in that portion of the trial judge's oral charge to the jury where he stated that "a person charged with a criminal offense should not be convicted unless the evidence excludes to a moral certainty every reasonable theory except that of the defendant's guilt. No matter how strong the circumstances are, they do not come up to the full measure of proof required by the law if the circumstances can be reasonably reconciled with the theory that the defendant is innocent." Wabbington v. State, 446 So.2d 665, 669-70 (Ala.Cr.App. 1983), cert. denied, Wabbington v. Alabama, 467 U.S. 1254, 104 S.Ct. 3542, 82 L.Ed.2d 846 (1984). "The oral charge need not state the legal principle exactly as it appears in the requested charge. The principle expressed in the requested charge need only be fairly and substantially covered in the trial court's oral charge." Tyson v. State, 361 So.2d 1182, 1188 (Ala.Cr.App. 1978).

The trial judge charged the jury on these principles immediately before the attorneys' closing arguments to the jury. Generally, a judge should not give undue prominence in his oral instructions to any aspect of the case. Ray v. State, 248 Ala. 425, 429, 27 So.2d 872 (1946). Here, the separate charge worked to the defendant's benefit, emphasizing for the jury his basic rights.

Requested charge number 3 was also properly refused because of its use of the term "all reasonable doubt." Ex parte Chavers, 361 So.2d 1106, 1108-09 (Ala. 1978).

The court's oral charge did not cover the substance of requested charges numbers 4 and 5. These charges contain correct propositions of law. Ex parte Williams, 468 So.2d 99, 101 (Ala. 1985), quoting from Thomas v. State, 363 So.2d 1020 (Ala.Cr.App. 1978). However, "[s]tatements of law in judicial opinions are not always proper for jury instructions in other cases. . . . Lifting language from an opinion and embodying it in a written charge does not of itself make it a correct instruction to the jury." Knight v. State, 273 Ala. 480, 490, 142 So.2d 899 (1962); Vincent v. State, 399 So.2d 923, 927 (Ala.Cr.App. 1981); Rolls v. State, 35 Ala. App. 283, 287, 46 So.2d 8 (1950). "It is a mistake to suppose that expressions in judicial opinions, properly there used, can be made to serve as clear, succinct statements of the law in special charges to the jury." Wear v. Wear, 200 Ala. 345, 348, 76 So. 111, 114 (1917); Rolls v. State, 35 Ala. App. 283, 287, 46 So.2d 8 (1950). "[A] statement of law in an opinion of an appellate court of Alabama, unless subsequently modified, is correct, but it does not necessarily follow that it should be given by the trial court in its instructions to the jury." Scruggs v. State, 380 So.2d 308, 312 (Ala.Cr.App. 1979), cert. denied, Ex parte Scruggs, 380 So.2d 313 (Ala. 1980). However, "[w]here an applicable legal principle is sound law and has been pronounced clearly and explicitly by a long line of decisions, handed down by the Supreme Court of this State, . . . we can see no reason why the jury should not be instructed on that law, so that they can utilize it for their guidance in the fair administration of justice, and arrive at a true verdict in the case." Buckles v. State, 291 Ala. 352, 355, 280 So.2d 814 (1972).

The most significant distinction between Williams, supra, from which requested charges numbers 4 and 5 were lifted, and the defendant's case, is that the evidence in Williams was entirely circumstantial. Here, even the defendant acknowledges that the evidence was only partly circumstantial. Appellant's brief, p. 9.

The circumstantial evidence in this case related to arson and rape, crimes for which the defendant was neither indicted nor convicted. Evidence of the homicide came from the defendant's own statement in which he admitted that a pistol discharged during a struggle with the victim. "Often a charge which is a correct statement of the law is properly refused because the facts of the case do not specifically require it. . . ." Blalock v. State, 369 So.2d 35, 38 (Ala.Cr.App.), cert. denied, Ex parte Blalock, 369 So.2d 38 (Ala. 1979) (emphasis added). Requested charges concerning circumstantial evidence are properly refused where not all of the State's case is derived from circumstantial evidence and where the requested charges do not call for a consideration of all the evidence. Johnson v. State, 55 Ala. App. 581, 588, 317 So.2d 548 (1975). See also McCoy v. State, 170 Ala. 10, 54 So. 428 (1911).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.

JOHNSON v. STATE