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Smith v. State12/22/2000
reme indifference to human life, § 13A-6-2(a)(2), and of heat-of-passion manslaughter, § 13A-6-3(a)(2). "A person accused of the greater offense is entitled to have the trial court charge on lesser offenses included within that offense when there is a reasonable theory from the evidence supporting the lesser offenses." Living v. State, [Ms. CR-98-1326, May 26, 2000] __ So. 2d __, __ (Ala. Crim. App. 2000). See also § 13A-1- 9(b) ("The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense."). The appellant argues that these proposed lesser offenses were supported by the evidence that he was "pumped up on drugs" at the time of the offense and that he "snapped" when Flournoy allegedly made profane and vulgar comments to the appellant's girlfriend. (Appellant's brief, p. 72.)
The evidence presented here offered no reasonable theory to support either offense. "A charge on reckless murder[, murder with extreme indifference to human life,] is not appropriate where the acts resulting in death are directed toward one or more particular people, ... rather than toward human life in general." Dunaway v. State, 746 So. 2d 1021, 1034-35 (Ala. Crim. App. 1998). See also Ex parte Simmons, 649 So. 2d 1282, 1284 (Ala. 1994) ("The purpose of § 13A-6-2(a)(2) is to embrace those homicides caused by such acts as shooting a firearm into a crowd, throwing a timber from a roof onto a crowded street, or driving an automobile in a grossly wanton manner."); Haney v. State, 603 So. 2d 368, 398 (Ala. Crim. App. 1991) (reckless murder "is intended to embrace those cases where a person has no deliberate intent to kill or injure any particular individual"). The evidence here did not allow for a charge under § 13A-6-2(a)(2): the appellant's acts were directed toward the three victims, with the intent to kill them. See McLaughlin v. State, 586 So. 2d 267, 270-71 (Ala. Crim. App. 1991) ("Because it was undisputed that the appellant pursued and pointed a gun at a particular victim, the evidence did not support the reckless murder charge."). The evidence offered no inference that the appellant's acts were the result of indifference to human life in general.
In regard to heat-of-passion manslaughter, the evidence presented no legal provocation, such as is required to reduce a killing from murder to heat-of-passion manslaughter. The well-established rule in Alabama is that mere words, no matter how insulting or abusive, cannot reduce a homicide from murder to manslaughter. Biggs v. State, 441 So. 2d 989, 992 (Ala. Crim. App. 1983). See also Smith v. State, 727 So. 2d 147, 161 (Ala. Crim. App. 1998) (in rejecting manslaughter as a lesser offense on the evidence that the killing was triggered by the victim's comment that the appellant's wife was "good," the court stated,"There was no evidence presented from which any inference that [the victim] assaulted or threatened Smith could be drawn, and this court has held that mere words or gestures, however offensive or insulting, will not reduce a homicide from murder to manslaughter."), aff'd, 727 So. 2d 173 (Ala. 1999), disagreed with on other ground, Ex parte Borden, [Ms. 1972037, April 21, 2000] __ So. 2d __ (Ala. 2000); Bone v. State, 706 So. 2d 1291, 1297 (Ala. Crim. App. 1997); MacEwan v. State, 701 So. 2d 66, 69 (Ala. Crim. App. 1997); Speake v. State, 610 So. 2d 1238, 1240-41 (Ala. Crim. App. 1992). Because no evidence of adequate legal provocation was presented at trial, the trial court did not err in failing to instruct the jury on heat-of-passion manslaughter.
B.
The appellant further contends that the trial court's jury instruction on reasonable d
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