BUSH v. STATE12/1/1995
defendant's conviction is overturned on collateral rather than direct attack is irrelevant for . . . purposes of deciding the retrial issue." United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964) (retrial
permitted after conviction set aside on habeas corpus review); quoted in Staatz v. Dupnik, 789 F.2d 806, 808 (9th Cir. 1986) (retrial permitted when conviction set aside pursuant to state post-conviction relief procedures because trial court gave an improper jury instruction). The appellant bases his argument that the Double Jeopardy Clause precluded his retrial after his successful habeas corpus petition on cases involving prosecutorial overreaching and misconduct, which we do not have in this case. These cases are distinguishable from the instant case. We find no plain error here.
XVI.
The appellant contends that the trial court erred, during the guilt phase of the trial, in not instructing the jury on the allegedly lesser included offenses of felony-murder and manslaughter; in instructing the jury to reconcile the witnesses' testimony if possible, which, he argues, created a presumption in favor of guilt; in failing to specify, in the instructions, the property that was allegedly taken; and in instructing the jury as it did on reasonable doubt, circumstantial evidence, and accomplice liability. No objection was raised in the court below as to any of these instructions except the instruction on accomplice liability. Where no objections were made, we will review those issues under the plain error rule. Plain error arises only if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings or if it has or probably has adversely affected a substantial right of the appellant. Ala.R.App.P. 45A; Ex parte Womack, 435 So.2d 766, 769 (Ala.), cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983).
In specific regard to the appellant's assertion that he was entitled to jury instructions on felony-murder and manslaughter, we note:
"A charge on a lesser included offense should be given when there is a reasonable theory from the evidence to support such a proposition. Ex parte Julius, 455 So.2d 984 (Ala. 1984), cert. denied, 469 U.S. 1132 . . . [105 S.Ct. 817, 83 L.Ed.2d 809] (1985). Clark v. State, 451 So.2d 368 (Ala. Cr. App. 1984). A trial judge, however, may refuse to charge on a lesser included offense when it is clear to the judicial mind that there is no evidence to support such a charge. Mullis v. State, 545 So.2d 205, 211 (Ala.Crim.App. 1989); Gurganus v. State, 520 So.2d 170 (Ala.Crim.App. 1987). A court should not charge the jury on a lesser included offense 'unless there is a rational basis for a verdict convicting the defendant of the included offense.' Ala. Code 1975, § 13A-1-9(b).
"Furthermore, an accused is not entitled to a charge on a lesser included offense when he denied committing the crime itself and the State's evidence does not support such a charge. Daly v. State, 442 So.2d 143 (Ala.Crim.App. 1983); Williams v. State, 377 So.2d 634 (Ala.Crim.App.), cert. denied, 377 So.2d 639 (Ala. 1979)."
Dill v. State, 600 So.2d 343, 352-53 (Ala. Cr. App. 1991), aff'd, 600 So.2d 372 (Ala. 1992), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993).
In its jury instructions in the guilt phase, the trial court instructed the jury on murder as a lesser included offense of the capital crime charged in the indictment. The appellant raised no objection to this portion of the oral charge and, in fact, announced "satisfied" on two occasions — upon conclusion of the jury instructions and again when the
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