Opinion
No. CR-01-0708.
Decided May 31, 2002. Rehearing Denied June 14, 2002. Certiorari Denied December 13, 2002. Alabama Supreme Court 1011795.
Appeal from Mobile Circuit Court (CC-01-2144).
Joseph D. Quinlivan, Jr., Mobile, for appellant.
William H. Pryor, Jr., atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
AFFIRMED BY UNPUBLISHED MEMORANDUM.
McMillan, P.J., and Shaw and Wise, JJ., concur; Cobb, J., concurs in the result, with opinion.
I agree that Alton Dewayne Portlock's conviction should be affirmed; however, unlike the majority, I believe that Portlock did preserve his contention that the trial court erred in refusing to give his requested jury instructions on heat-of-passion manslaughter.
Testimony at trial was to the effect that Portlock and the victim were arguing. As Portlock began to walk away, the victim called him a "punkass motherfucking bitch." Portlock turned, stared at the victim, then shot him in the head three times and in the chest once. (R. 90.)
Portlock's written requested jury charge no. 5 was as follows:
"The court charges the jury that a lesser included offense charged in the indictment is the offense of heat of passion manslaughter."
(C. 17.)
Before the jury began deliberating, Portlock made the following objection to the trial court's refusal to give requested charge no. 5:
"I would like to take exception to the Court failing to give my requested charge numbered 5 . . . concerning manslaughter as a lesser included charge, in light of the fact, Judge, that we did present sufficient evidence for the Court to charge the jury on self-defense."
(R. 257.)
I believe that "[i]t is clear that the trial court understood the basis for the objection." Covington v. State, 620 So.2d at 122, 127 (Ala.Crim.App. 1993), citing Felder v. State, 593 So.2d 121, 122-23 (Ala.Crim.App. 1991); Marshall v. State, 570 So.2d 832, 834 (Ala.Crim.App. 1990); Ex parte McCall, 594 So.2d 628, 631 (Ala. 1991); and Ex parte Pettway, 594 So.2d 1196, 1200 (Ala. 1991).
Although I believe the claim is preserved, the trial court's refusal to instruct the jury as requested was not error. The record supports the trial court's ruling that there was "no evidence whatsoever that would justify a charge of lesser included offense of manslaughter." (R. 196.) "Mere words . . . no matter how abusive or insulting, will not reduce a homicide from murder to manslaughter." MacEwan v. State, 701 So.2d 66, 69 (Ala.Crim.App. 1997).
Therefore, though I agree with the result reached by the majority in its unpublished memorandum, I disagree with its rationale.