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BUSH v. STATE12/1/1995
pertinent instructions were repeated in response to a question from the jury during its deliberations. Furthermore, the appellant did not request the trial court to instruct on felony-murder and manslaughter. Although there was some evidence that the appellant had consumed drugs shortly before the commission of the charged crime, the trial court was not requested to and did not instruct on the legal principles of intoxication in connection with criminal liability. It is clear that the appellant's defense strategy was to convince the jury that he had not been involved in the commission of the crime: he endeavored to place the blame on Cornelius Pringle and Edward Pringle; he asked the jury not to believe his confession because of alleged coercion; he suggested that Patricia Pringle was motivated to lie; and he urged the jury to believe that Tony Holmes's identification
of Cornelius Pringle as the assailant was accurate. He made no claim that he had been unable to form the intent to kill because of intoxication. His defense strategy was simply that he was not there. In his closing argument, he referred to the verdicts that the jury could return as capital murder, murder, and not guilty. Instructions on the offenses of felony-murder and manslaughter would have been inconsistent with his trial strategy. Nevertheless, he now raises the issue for the first time on appeal. He now contends that the trial court erred in not instructing the jury on felony-murder and manslaughter sua sponte.
Under the plain error review standard, we find that, under the circumstances here, the trial court's failure to instruct the jury on felony-murder and manslaughter and on the principles of voluntary intoxication was not such an error, if error at all, as would seriously affect the fairness or integrity of the proceedings or adversely affect a substantial right of the appellant. Where the instructions requested would have conflicted with defense strategy, there is no error in the trial court's failure to give the instructions. Gurley v. State, 639 So.2d 557 (Ala. Cr. App. 1993); Hunt v. State, 659 So.2d 933 (Ala. Cr. App. 1994), aff'd, 659 So.2d 960 (Ala.), cert. denied, ___ U.S. ___, 116 S.Ct. 215, 133 L.Ed.2d 146 (1995); Hutcherson v. State, 677 So.2d 1174 (Ala. Cr. App. 1994). See also United States v. Chandler, 996 F.2d 1073, 1099 (11th Cir. 1993), cert. denied, 512 U.S. 1227, 114 S.Ct. 2724, 129 L.Ed.2d 848 (1994) (court has no duty to offer sua sponte instruction on lesser offense of murder-for-hire when defendant, charged with murder while engaged in and in furtherance of continuing criminal enterprise, may have made strategic decision not to request murder-for-hire instruction); Kubat v. Thieret, 867 F.2d 351, 365-66 (7th Cir.), cert. denied, 493 U.S. 874, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989) (court has no duty sua sponte to offer instruction on lesser included offense of unlawful restraint when defendant, charged with murder and kidnapping, may have made strategic decision not to request unlawful restraint instruction).
The appellant also contends that the trial court's instruction concerning the credibility of witnesses, which was as follows, was error because it created a presumption that the witnesses were telling the truth:
"How do you determine the truth? The law helps some there. The law says you're entitled to consider what these witnesses said and how they said it. Were they willing, too willing, or unwilling? Were they candid with you or evasive? Did their testimony ring true? You're the sole judges of the credibility, we call it. You're the sole judges on whether these witnesses told you the truth. Now, the law says that you're entitled to consider both what they said and how the
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