Opinion
CR-10-1579
11-02-2012
Everett Bernard Morton v. State of Alabama
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
Appeal from Houston Circuit Court
(CC-06-648; CC-06-649)
, Judge.
The appellant, Everett Bernard Morton, was convicted of one count of capital murder, see § 13A-5-40(a) (17), Ala. Code 1975; and one count of attempted murder, see §§ 13A-6-2 and 13A-4-2, Ala. Code 1975. The circuit court sentenced Morton to life imprisonment without the possibility of parole for the capital-murder conviction and to 10 years' imprisonment for the attempted-murder conviction. The circuit court ordered Morton to pay a $5,000 fine, $1,000 to the crime victims compensation fund, and court costs.
The evidence presented at trial established the following pertinent facts. Morton was living at his aunt's house on the corner of Hamilton Street and Fifth Street in Dothan. Elishous Townsend was Morton's neighbor on Hamilton Street. Townsend had observed Morton purchase marijuana in a number of different spots "right there on Hamilton [Street]" in front of their respective houses. (R. 539.) On April 19, 2006, Townsend overheard Morton and another man, Michael James, discussing a robbery while the two men stood in Townsend's front yard.
Later that evening, Townsend observed Patrick Dixon driving a dark green vehicle down Hamilton Street in the direction of Morton's aunt's house. Townsend observed a young girl — later determined to be Kaheera Rich -- approach Dixon's vehicle. Townsend then saw the vehicle drive past Morton's aunt's house and turn onto Fifth Street. A few minutes later, Townsend heard gunshots. Shortly after the shots were fired, Townsend saw three people running toward his house: Morton, James, and Marcus Rivers. The three men wanted to come up onto Townsend's porch, but Townsend told them to "run on up the damn street." (R. 550.)
Tyrance Byrd and Dixon sold marijuana around Dothan. On the night of the shooting, Morton telephoned Dixon and asked for a "dime sack." (R. 960.) Byrd testified that he and Dixon drove over to Morton's aunt's house and stopped in front of the house, where they were met by Rich. Rich told them "my auntie don't want this type of business in front of her house," and instructed the men to pull around to the side of the house on Fifth Street. (R. 966.) Once the vehicle was around the corner, Morton approached the vehicle on the driver's side. Morton and Dixon exchanged money for marijuana, but Morton did not immediately walk away; instead, Morton appeared to be stalling. Two armed men with masks — later determined to be James and Rivers — approached on the passenger side of Dixon's vehicle.
A dime sack is a $10 bag of marijuana.
When the men approached, Dixon "hit the gas," but because the vehicle was still in park, the vehicle did not move. (R. 973.) James and Rivers demanded Dixon's money and drugs, and Dixon handed over between $400 and $500 to the gunmen. After Dixon handed over the money, James and Rivers "started shooting up the car." (R. 978.) Both Dixon and Byrd suffered gunshot wounds, but Dixon was able to drive away. As Dixon and Byrd drove away, Dixon began to have trouble breathing and started to bleed profusely. Dixon passed out, and Byrd grabbed the wheel from the passenger seat and steered the car away from a building and into a cemetery. When the vehicle came to rest Byrd telephoned 911. An ambulance and police officers arrived at the scene shortly thereafter. Dixon later died as a result of multiple gunshot wounds.
Kaheera Rich was Morton's 12-year-old neighbor. She was walking home from a convenience store with her two younger brothers when she came across Morton standing outside his aunt's house. Morton asked Rich to tell the driver of the vehicle parked in front of his aunt's house to drive around the corner onto Fifth Street. Rich testified that nothing would have prevented Morton from asking the driver of the car to move himself; however, Morton requested that she tell the driver to pull around to the side of the house. When Rich approached the vehicle she saw two black males -- Dixon and Byrd -- sitting in the vehicle. She told the men to pull around the corner onto Fifth Street, which was a quieter and darker street than Hamilton.
Rich observed the vehicle pull around the corner and stop. Rich watched Morton approach the driver's side of the vehicle and engage in a conversation with Dixon. After a short period, Rich saw Morton put his hands on top of the vehicle and signal what she characterized as a "setup," at which time "[James and Rivers] came out of the bushes." (R. 672.) James and Rivers were wearing bandanas and carrying guns and asked Dixon and Byrd to "give it up." (R. 674.) Morton moved away from the car as soon as the two men appeared, and he dropped down on the ground. The two men started firing into the car, first into the front of the car, and then into the back of the car as the vehicle sped away. Police recovered a large number of shell casings and projectiles from the scene of the shooting.
Michael James testified against Morton at trial. James testified that it was Morton's idea to rob Dixon because Morton owed money to a drug supplier. James told Morton that Dixon was not a good target because Dixon knew everyone, but eventually James agreed to go along with the plan because they were certain Dixon would be carrying money and marijuana. Morton called Dixon and ordered marijuana to set the plan in motion. James loaned Morton $10 so that there could be a legitimate drug transaction to begin the robbery.
James and Rivers hid in the bushes on either side of the street and watched Morton initiate the drug deal. According to James's testimony, Morton was going to use body language to signal James and Rivers when it was time to start the robbery. After receiving the signal from Morton, James and Rivers approached the parked vehicle. Once the money was handed to Rivers, James was the first to shoot, aiming at the passenger. Rivers also started shooting and aimed at the driver. Both men continued to shoot into the vehicle as the vehicle drove away. James did not testify as to whether Morton knew he and Rivers intended to shoot into the vehicle.
After the shooting, Morton, James, and Rivers ran away. James and Rivers were apprehended a few hours later, while Morton turned himself in to the Dothan Police the following afternoon. Police subsequently recovered two handguns from a shed behind Rivers's mother's house.
Morton testified in his own defense and claimed that he did not know anyone was going to be shot during the robbery. According to Morton's testimony, he simply set up the drug deal that set the robbery into motion. Morton was aware that both James and Rivers regularly carried firearms, but he said that neither James nor Rivers discussed shooting Dixon or Byrd before the robbery took place. Morton testified that after he bought the marijuana from Dixon, James and Rivers jumped out of the bushes and ordered him to lie on the ground. Shortly after Morton got on the ground, he heard gunshots. After Dixon drove away in the vehicle, Morton got up and ran toward his aunt's house, and then drove away in a relative's truck.
Morton's case was tried before a jury. After both sides had rested and the court had instructed the jury on the applicable principles of law, the jury found Morton guilty of capital murder and attempted murder. This appeal followed.
The dispositive issue raised by Morton on appeal is whether the circuit court erred in refusing to instruct the jury on felony murder as a lesser-included offense of capital murder.
"'[E]very accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility.' Ex parte Chavers, 361 So. 2d 1106, 1107 (Ala. 1978). '"'It is a basic tenet of Alabama law that "a party is entitled to have his theory of the case, made by the pleadings and issues, presented to the jury by proper instruction, . . . and the [trial] court's failure to give those instructions is reversible error."'"' Ex parte McGriff, 908 So. 2d 1024, 1035 (Ala. 2004), quoting Winner Int'l Corp. v. Common Sense, Inc., 863 So. 2d 1088, 1091 (Ala. 2003)."Jackson v. State, 43 So. 3d 634, 637-38 (Ala. Crim. App. 2010)(quoting Williams v. State, 938 So. 2d 440, 444-45 (Ala. Crim. App. 2 005)).
"'A felony murder is committed when a person commits or attempts to commit one of several enumerated felonies, and, in the course of or in furtherance of the crime or in flight from the crime, that person causes another person's death. There is an intended felony and an unintended homicide.'" Knotts v. State, 686 So. 2d 431, 457 (Ala. Crim. App. 1995)(quoting Ex parte Bates, 461 So. 2d 5 (Ala. 1984)). Felony murder does not require the specific intent to kill; it requires only the intent to commit the underlying felony. § 13A-6-2(a)(3), Ala. Code 1975; Mitchell v. State, 706 So. 2d 787 (Ala. Crim. App. 1997). Robbery is an underlying felony for purposes of felony murder. See § 13A-6-2(a)(3), Ala. Code 1975. Unlike felonymurder, the defendant must have the specific intent to kill in order for the defendant to be guilty of capital murder. § 13A-5-40(b), Ala. Code 1975; Ex parte Woodall, 730 So. 2d 652, 657 (Ala. 1998) ("No defendant can be found guilty of a capital offense unless he had an intent to kill, and that intent to kill cannot be supplied by the felony-murder doctrine.").
Based on the facts of the instant case, the jury should have been instructed on felony murder as a lesser-included offense of capital murder, with the underlying felony offense being the robbery. Morton admitted that he set up the robbery and that he intended for Dixon to be robbed by James and Rivers. Therefore, Morton had the specific intent to commit the underlying robbery. However, Morton's defense throughout the case was that he never intended for Dixon to be killed. Morton testified in his own defense and admitted to planning the robbery but claimed that he never believed anyone was going to be shot during the course of that robbery. Thus, Morton presented evidence indicating that he did not have the specific intent to kill Dixon.
The State presented ample evidence to prove that Morton planned the robbery. Because Morton provided sufficient evidence to support his theory that the killing of Dixon was the unintentional result of the robbery, Morton was entitled to a jury instruction on felony murder as a lesser-included offense of capital murder. The judgment of the circuit court is reversed and this cause is remanded to the circuit court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Windom, P.J., and Welch, Burke, and Joiner, JJ., concur.