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MACEWAN v. STATE2/28/1997
al, which held between five and seven ounces, was full. Additionally, the eight-ounce bottle of Benadryl was full except for approximately four teaspoons. Sita also testified that MacEwan had apparently cut herself intentionally with a razor blade on the day Sydney died and had again similarly attempted suicide two days after Sydney's death. Sita testified that MacEwan was hospitalized in the psychiatric ward for two or three weeks after the second suicide attempt.
Andrew Robinson, a forensic toxicologist for the Jefferson County medical examiner's office, testified that he performed tests on blood, urine, bile, and gastric samples taken from the victim. Robinson testified that he became suspicious of the circumstances of Sydney's death after test results revealed a blood alcohol level of .04 grams per 100 milliliters. For comparative purposes, Robinson explained that a blood alcohol level of .08 grams per 100 milliliters is the level at which an adult is considered legally intoxicated. Robinson explained that Benadryl is marketed in elixir form that contains alcohol as an ingredient. Further testing revealed
that a lethal concentration of Benadryl was present in Sydney's blood. Robinson estimated that it would have taken a minimum of 6.7 ounces of Benadryl elixir to achieve the levels of Benadryl and alcohol found in Sydney's system. Robinson also testified that although phenobarbital was found in Sydney's system in an amount higher than a therapeutic level, the level was not considered lethal.
Dr. Gregory Davis, associate coroner-medical examiner at the Jefferson County coroner-medical examiner's office, testified that he examined Sydney's body and determined her cause of death to be Benadryl intoxication. Dr. Davis testified that the ingestion of approximately eight ounces of Benadryl elixir would have caused the levels found in Sydney's system. MacEwan offered no explanation at trial as to how Sydney could have been administered a lethal dose of Benadryl.
MacEwan raises four issues on appeal.
I.
MacEwan argues that the trial court erred in refusing to give her requested jury instruction concerning heat-of-passion manslaughter. Heat-of-passion manslaughter is defined at § 13A-6-3(a)(2), Ala. Code 1975, as follows:
"(2) [Causing] the death of another person under circumstances that would constitute murder under Section 13A-6-2; except, that he [or she] 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."
MacEwan contends that she provided sufficient evidence at trial to justify an instruction on heat-of-passion manslaughter. She contends that a jury could have determined that the stress generated from both raising a handicapped child and losing her live-in companion caused her to act "in the heat of passion." We find MacEwan's argument without merit.
Alabama law is settled as to when a defendant is entitled to a jury instruction on a lesser included offense. A person accused of the greater offense has a right to have the court charge on lesser included offenses when there is a reasonable theory from the evidence supporting those lesser included offenses. Kennedy v. State, 494 So.2d 792, 794 (Ala. Cr. App. 1986); Wiggins v. State, 491 So.2d 1046, 1047-48 (Ala. Cr. App. 1986); Chavers v. State, 361 So.2d 1106, 1107 (Ala. 1978). "The defendant has the right to request instructions based upon any material hypothesis which the evidence in his favor tends to establish." Ex parte Stork, 475 So.2d 623, 625 (Ala. 1985). We hold that MacEwan failed to advance any reasonable theory from
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