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Culpepper v. State9/28/2001
icting the appellant for manslaughter or convicting him of criminally negligent homicide, the jury chose the lesser of the two offenses. Nothing in the jury's verdict supports the contention that it could not have returned a verdict on the offense of vehicular homicide, had it been given that option. By returning a verdict on criminally negligent homicide, the jury found that the appellant had acted recklessly, which could also support a verdict of vehicular homicide. Ex parte Long, 600 So.2d at 987.
Based on the Supreme Court's opinion in Ex parte Long, the failure of the trial court to instruct on the lesser- included offense of homicide by vehicle was not harmless error, because the jury found the appellant guilty of criminally negligent homicide, a lesser offense to the charged offense of manslaughter. Given the opportunity, under the facts and circumstances of this case, the jury could have returned a verdict for homicide by vehicle. Therefore, the trial court's judgment is due to be reversed.
Because we must reverse the trial court's judgment on the basis of our holding as to this issue, we express no opinion on the other issues raised by the appellant. "`Our decision not to address [the merits of] the remaining issues raised by the appellant should not be construed as an approval of the manner in which the trial was conducted in regard to those issues.'" Phillips v. State, 726 So. 2d 292, 295 (quoting Fletcher v. State, 621 So. 2d 1010, 1024 (Ala.Crim.App. 1993)).
The judgment of the trial court is reversed and this cause is remanded to the trial court for a new trial.
REVERSED AND REMANDED.
McMillan, P.J., and Cobb, Baschab, and Shaw, JJ., concur.
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