Citation Codes

Equivalent Citations

citation codes

Docket Number

1 Div. 632.

Attorney(S)

James H. Lackey, Mobile, for appellant. Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for appellee.

Judges

HARRIS, Judge.

See more information ...

Smart Summary

Carl Arthur Perry, Jr. v. State — Court of Criminal Appeals of Alabama (May 22, 1984)

Appeal from Circuit Court, Mobile County (Judge Edward B. McDermott). Counsel: James H. Lackey for appellant; Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for appellee.

Factual and Procedural Background

On December 17, 1982, a Mobile County grand jury indicted Carl Arthur Perry, Jr. for the murder of Paul Laporte. After trial, on May 18, 1983, Perry was found guilty of murder and sentenced to life imprisonment without parole under the habitual felony offender statute.

The crime occurred about 1:00 a.m. on July 10, 1982, at Casey's Clubhouse in Mobile County. Witnesses testified that both the defendant and the victim were intoxicated. Earlier that day the defendant had been at the bar at various times and left around 11:00 p.m., returning around 1:00 a.m. Upon returning he embraced the victim and shortly thereafter a physical altercation occurred: witnesses observed the two men wrestle and fall to the floor.

Lamule Miller, an owner of the bar, and patrons separated the men. A bloodied knife was found near the top of a stairway and given to the police. Miller testified that when he reached the men Laporte had already been stabbed and he heard Laporte say, "I'm going to kill you." Jeanette Burgess, the bartender, saw a scabbard concealed between the defendant's trousers and his back. After the incident the defendant fled the scene and jurisdiction in his truck, was pursued by the Jackson County, Mississippi Sheriff's Office, wrecked his truck during a high-speed chase, and was captured.

Trial testimony also included prior drunken threats by Laporte directed to other patrons, including one explicit statement to another man that Laporte would "pull it and cut his _____ head off with it." There was no evidence of a prior quarrel or physical provocation by the victim toward the defendant before the fatal brawl.

Legal Issues Presented

Whether the trial court erred in allowing the State to use leading questions and questions calling for speculation of witnesses during redirect examination.
Whether the evidence was sufficient to support a conviction for murder rather than manslaughter.
Whether the trial court erred in failing to instruct the jury on killing in the sudden heat of passion caused by provocation recognized by law (i.e., whether a manslaughter instruction on heat-of-passion provocation was required).

Arguments of the Parties

Appellant's Arguments

The trial court improperly allowed the State to ask leading questions and questions calling for speculation during redirect, specifically relating to whether Laporte had been stabbed before making the statement "I'm going to kill you."
The evidence was insufficient to establish murder and, at most, established manslaughter because the killing was allegedly caused by provocation or sudden heat of passion.
The trial court erred by failing to charge the jury on the theory of sudden heat of passion caused by provocation recognized by law (a lesser-included offense instruction).

Appellee's Arguments

The opinion does not contain a detailed account of the appellee's (State's) formal legal arguments in opposition to the appellant's contentions; the record does, however, reflect the State's questioning and reliance on existing statutory definitions and case law reflected in the court's analysis.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Buffalow v. State, 219 Ala. 407, 122 So. 633 (1929)	Where a defendant slays an assailant suddenly under the maddening influence of the blow, and nothing else appears, the homicide is manslaughter, not murder.	The court cited Buffalow to explain the distinction between manslaughter and murder when an immediate physical assault produces an enraged, sudden killing. The court found that facts here did not show such a scenario applicable to the defendant.
Easley v. State, 246 Ala. 359, 20 So.2d 519 (1944)	Mere words, however insulting, do not reduce a homicide to manslaughter.	The court relied on Easley to hold that the victim's drunken verbal threats (even if directed at the defendant) would not constitute legal provocation sufficient to reduce murder to manslaughter.
Jackson v. State, 375 So.2d 558 (Ala.Cr.App. 1979)	An objection to the correctness of a trial court's oral charge cannot be raised for the first time on appeal.	The court applied Jackson to bar appellate review of the defendant's claim about the trial court's failure to charge on heat-of-passion provocation because no objection was made at trial.
Hafley v. State, 342 So.2d 408 (Ala.), cert. denied, 342 So.2d 412 (Ala. 1977)	Reinforces the rule that failure to object to jury charge at trial prevents raising that issue for the first time on appeal.	The court cited Hafley to support the procedural bar to appellate review of the unpreserved charge objection.
Cox v. State, 193 So.2d 749 (Ala. 1967)	Similar procedural principle regarding preservation of objections to jury instructions.	The court cited Cox to reinforce that the defendant cannot challenge the oral charge on appeal if no timely objection was made at trial.
Oglen v. State, 440 So.2d 1172 (Ala. 1983)	An accused is not entitled to a jury charge on a lesser-included offense unless there is a reasonable theory from the evidence to support that lesser offense.	The court invoked Oglen to state that even if the failure to charge had been preserved, the evidence did not present a reasonable theory of the lesser offense (manslaughter) to warrant such a charge.
Myers v. State, 401 So.2d 288 (Ala.Cr.App. 1981)	Same principle as Oglen concerning entitlement to instruction on lesser-included offenses only when supported by a reasonable theory from the evidence.	The court cited Myers as additional authority that a lesser-included offense instruction is not required absent evidence supporting a reasonable theory of that offense.

Court's Reasoning and Analysis

The court addressed the appellant's contentions in turn. First, regarding the State's questioned use of leading and speculative questions on redirect: the court examined the transcript excerpts. It observed that when defense counsel objected that a question called for speculation or was leading, the trial court overruled the objection "if he knows," and the State then rephrased its questions so they pertained to matters within the witness's personal knowledge (for example, whether the witness saw blood on the victim's hand or whether the witness saw the stabbing). The court concluded there was no error in the handling of these questions; alternatively, if any error occurred, it did not injuriously affect appellant's substantial rights and thus would not be reversible under A.R.A.P. 45.

Second, on sufficiency of the evidence and the proper characterization of the homicide: the court set out the relevant statutory definitions for murder (Section 13A-6-2) and manslaughter (Section 13A-6-3), including the statutory allocation of the burden for injecting provocation. The court reviewed case law distinguishing manslaughter based on sudden provocation (Buffalow) from the rule that mere words do not reduce homicide to manslaughter (Easley). Applying those authorities to the facts, the court determined that although the evidence supported a conviction of murder, there was no evidence of "legal provocation" by the victim toward the appellant that would reduce the offense to manslaughter: (1) the record did not show the victim threatened the appellant (threats were made to other patrons), (2) even assuming a threat to appellant, mere words would not constitute legal provocation under Easley, and (3) there was no evidence the victim physically struck or otherwise provoked the appellant.

Third, on the claim that the trial court erred by failing to instruct the jury on sudden heat of passion caused by legally recognized provocation: the court noted that the appellant did not object to the trial court's oral charge on this ground at trial. The court therefore applied precedent precluding appellate review of the oral charge when the correctness of the charge is not challenged below (Jackson, Hafley, Cox). The court added that even if the issue had been properly preserved, Alabama law (Oglen, Myers) requires that a defendant is entitled to a lesser-included offense instruction only when there is a reasonable theory from the evidence supporting that lesser offense — which the court found lacking here.

Finally, after a careful search of the record for prejudicial error affecting substantial rights, the court found none and affirmed the conviction.

Holding and Implications

Holding: The Court of Criminal Appeals affirmed the judgment of conviction. AFFIRMED.

Implications:

The appellant's conviction for murder and the life sentence (without parole) under the habitual felony offender statute were upheld.
The court concluded there was no reversible error in the trial court's allowance of the State's redirect questioning, and any possible error would not have affected the appellant's substantial rights under A.R.A.P. 45.
The court held the evidence supported a finding of murder and did not present legal provocation or a reasonable theory of manslaughter by sudden heat of passion; thus no lesser-included instruction was required or warranted.
Because the appellant failed to object to the jury charge at trial, appellate review of the charge's correctness was procedurally barred. Even if preserved, the substantive lack of evidentiary support for a lesser offense would preclude a required instruction.
The opinion affirms application of existing Alabama authority on provocation, preservation of charge objections, and requirements for lesser-included offense instructions; it does not announce new law beyond the application of those precedents to the facts of this case.

All Judges concur.

Show full summary ...

Carl Arthur PERRY, Jr. v. STATE.

HARRIS, Judge.

On December 17, 1982, the Mobile County Grand Jury indicted appellant, Carl Arthur Perry, Jr., for the murder of Paul Laporte. On May 18, 1983, he was found guilty of the murder and was sentenced to life imprisonment without parole under the habitual felony offender statute.

Testimony at trial revealed that Laporte died from a stab wound to the chest, and that his hands were cut in an apparent attempt to fend off the attack. The fatal stabbing took place at about 1:00 a.m. on July 10, 1982, at a bar called Casey's Clubhouse in Mobile County. Both Laporte and Perry were intoxicated at the time.

Appellant was seen at Casey's at 11:00 a.m. when the bar opened, at 2:00 p.m. and from 10:00 p.m. till 11:00 p.m. At about 10:00 p.m. the bartender refused to serve him any more liquor and appellant left at about 11:00 p.m. He returned around 1:00 a.m.

On returning to Casey's, appellant went directly to Laporte at the bar and put his arm around his shoulders. Laporte responded by placing his arm around appellant's shoulders. Witnesses interpreted this as a display of camaraderie.

James David Henderson saw appellant standing at the bar talking with Laporte. He observed appellant bend over at the waist, straighten up and then start to wrestle with Laporte, the two men falling to the floor.

Lamule Miller, one of the owners of the bar, with the aid of some patrons, immediately pulled the two men apart. The episode began and ended so quickly that by the time Henderson made his way to the area the two men were gone. He discovered a bloodied knife at the top of the stairway and turned it over to Miller, who later gave it to the police.

Miller's wife screamed, "Carl, no," when she saw the affray begin. Miller responded quickly and was the first person to reach the men and attempt to separate them. When he got to them Laporte had already been stabbed. He heard Laporte say, "I'm going to kill you."

As the men pulled appellant away, Jeanette Burgess, the bartender, saw a scabbard concealed between appellant's trousers and his back.

Appellant fled both the scene and the jurisdiction in his truck. He was chased back into Alabama by the Jackson County, Mississippi, Sheriff's Office. He was finally captured after a high speed chase during which he wrecked his truck.

Henderson reported that earlier in the evening Laporte remarked to him that he was going to jump all of them down there, referring to approximately six men playing pool. Henderson did not think the remark was a serious one.

Morgan Thomas, Jr., testified that he was in the bar that night around 11:00 p.m., and that Laporte sat down at his table and said of appellant, "I know he's got a knife, because I'm going to pull it and cut his _____ head off with it."

There were no other reports of antagonistic remarks, and no report of any quarrel or altercation between Laporte and appellant, or between any other persons, prior to the fatal brawl.

Appellant first contends, on appeal, that the trial court erred in allowing the state to use leading questions, and questions calling for speculation on the part of witnesses.

The testimony in question was given on redirect examination by the state, and was regarding the statement made by the deceased, "I'm going to kill you." The statement was overheard by Mr. Miller, and Miller testified that Laporte had already been stabbed when he made the threat to appellant. The testimony in question was as follows:

"BY MR. STEELE:

"Q. He was already pulled apart when he said that, made that statement; is that what you are saying?

"A. No, sir. He was on top of him. And as I was reaching for him to pull him apart is when Mr. Laporte said that.

Q. Is it safe to say he had already been stabbed at that time?

"MR. BROWN: Judge, I object. He has no knowledge of that.

"THE COURT: If he knows.

"MR. STEELE: Judge, if he had blood on his hand, he knows.

"THE COURT: Overruled.

"MR. STEELE:

"Q. Did you have blood on your hand at that time?

"A. No, sir.

"Q. Did you see the stabbing?

"A. No, sir.

"Q. Okay. But when you broke them apart, Mr. Laporte had been stabbed, is that right?

"A. Yes, sir.

"Q. Then would it be safe to say that he was stabbed before making that statement?

"MR. BROWN: Judge, I object to him leading the witness.

"THE COURT: Overruled. If he knows.

"BY MR. STEELE:

"Q. Had he been stabbed prior to him making that statement?

"A. Yes, sir."

An examination of the testimony set out above reveals that after appellant's counsel first objected to the State's question as calling for speculation, and the objection was overruled, that the State nevertheless rephrased the question so that it concerned a matter within the knowledge of the witness.

Similarly, when appellant's counsel next objected to a question as leading, the objection was overruled, but the State rephrased the question so that it no longer suggested an answer.

We find no error here, but if there is error it did not injuriously affect the substantial rights of appellant, and thus would not constitute reversible error under A.R.A.P. 45.

Appellant next contends that the evidence was not sufficient to support a finding of murder, and that the killing could only have amounted to manslaughter.

Applicable sections from Code of Alabama 1975 are as follows:

"Section 13A-6-2. Murder.

"(a) A person commits the crime of murder if:

"(1) With intent to cause the death of another person, he causes the death of that person or of another person; . . .

"(b) A person does not commit murder under subdivisions (a)(1) or (a)(2) of this section if he was moved to act by a sudden heat of passion caused by provocation recognized by law, and before there had been a reasonable time for the passion to cool and for reason to reassert itself. The burden of injecting the issue of killing under legal provocation is on the defendant, but this does not shift the burden of proof. This subsection does not apply to a prosecution for, or preclude a conviction of, manslaughter or other crime.

"Section 13A-6-3. Manslaughter.

"(a) A person commits the crime of manslaughter if: . . .

"(2) He causes the death of another person under circumstances that would constitute murder under section 13A-6-2; except, that he causes the death due to a sudden heat of passion caused by provocation recognized by law, and before a reasonable time for the passion to cool and for reason to reassert itself."

In Buffalow v. State, 219 Ala. 407, 122 So. 633, 635 (1929), where the deceased had been shot and defendant claimed self-defense, the court held that, "If one assaulted, suddenly and under the maddening influence of the blow, slays his assailant, and there is nothing else in the transaction, this is manslaughter, and not murder." (citation omitted) The court in Easley v. State, 246 Ala. 359, 20 So.2d 519, 521 (1944), however, held that, "Mere words, no matter how insulting, never reduce a homicide to manslaughter."

In the case before us there is evidence to support a conviction of murder, but no evidence of legal provocation which would reduce the crime to manslaughter. There was evidence that the victim made drunken threats when talking to two different men, but no evidence that he threatened appellant. Even assuming that he did so, this would not have amounted to legal provocation under Easley supra. There was no evidence whatever that the victim hit, or otherwise physically provoked appellant. Appellant's claim that the charge of murder should have been reduced to manslaughter is, therefore, untenable.

Appellant contends lastly that the trial court erred in its failure to charge the jury on killing in the sudden heat of passion caused by provocation recognized by law.

Appellant, however, did not state such an objection at trial, and the correctness of the trial court's oral charge cannot be challenged for the first time on appeal. Jackson v. State, 375 So.2d 558 (Ala.Cr.App. 1979); Hafley v. State, 342 So.2d 408, cert. denied, 342 So.2d 412 (Ala. 1977); Cox v. State, 193 So.2d 749 (Ala. 1967). In addition, even if the issue had been properly preserved for review, an accused is not entitled to have the jury charged on a lesser-included offense unless there is a reasonable theory from the evidence to support the lesser offense. Oglen v. State, 440 So.2d 1172 (Ala. 1983); Myers v. State, 401 So.2d 288 (Ala.Cr.App. 1981).

We have carefully searched the record for errors prejudicial to the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.

PERRY v. STATE