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10/21/94 TONY DEMETRIUS EDWARD JONES v. STATE

October 21, 1994

TONY DEMETRIUS EDWARD JONES
v.
STATE



Appeal from Mobile Circuit Court. (CC-93-209 and CC-93-210). Robert Byrd, TRIAL JUDGE.

Rule 39(k) Motion Denied December 2, 1994. Rehearing Denied December 2, 1994. Certiorari Denied February 24, 1995. Released for Publication June 25, 1995.

Taylor

The opinion of the court was delivered by: Taylor

TAYLOR, JUDGE

The appellant, Tony Demetrius Edward Jones, was convicted of murder in violation of § 13A-6-2, Code of Alabama 1975, and of robbery in the first degree in violation of § 13A-8-41. He was sentenced to 25 years' in the penitentiary on each conviction, to be served concurrently.

The state's evidence tended to show that on August 14, 1992, the victim, Jack Poe, died as a result of a gunshot wound to the chest. The state presented two eyewitnesses, Lebarron Johnson and Keith Matthews. Matthews, an employee at the Northside Check Exchange in Mobile, testified that at 6:00 p.m. on August 14, 1992, Poe entered his place of business to exchange a $100 bill for bills of lesser denomination. When Poe left the building, Matthews followed him out to buy a newspaper from a sidewalk stand. Matthews observed Poe walking toward the parking lot. He then saw the appellant approach Poe and speak with him for a few seconds. He could not hear what was said. Johnson, an employee of a nearby business, and Matthews observed the appellant grabbing Poe by the arm and the collar. Matthews testified that the appellant had a gun in one hand and was grabbing Poe with the other hand. Poe resisted, and the two struggled for a few seconds. Johnson testified that the appellant then pushed Poe or backed away from Poe and pulled out a gun and shot Poe. Both Johnson and Matthews observed the appellant point a gun at Poe's chest and fire one time. Johnson testified that at the time of the shooting, Poe had his wallet in his right hand. Both Johnson and Matthews testified that the appellant had what appeared to be a white bandage or cloth wrapped around his left hand. Neither Johnson nor Matthews saw Poe with any weapons.

The appellant raises two issues on appeal.

I

The appellant contends that the trial court erred in refusing to instruct the jury on the lesser offense of manslaughter.

Generally, a trial court should instruct the jury on a lesser offense if there is a reasonable theory from the evidence to support that lesser offense. Ex parte Stork, 475 So.2d 623, 625 (Ala. 1985). However, a trial court may properly refuse to instruct on a lesser offense when it is "clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense." Stork, 475 So.2d at 625. In this case, the trial court did not err in refusing the appellant's requested instruction on the lesser offense of manslaughter.

"For a jury to find that the appellant may have been guilty of manslaughter rather than murder, evidence would have had to have been introduced at trial which might have shown the appellant's conduct to have been 'reckless' or triggered by 'sufficient provocation.' Ala.Code § 13A-6-3(a)(1975). If such evidence is introduced 'however weak, insufficient, or doubtful in credibility,' then the appellant is entitled to a jury charge on the lesser included offense. Ex parte Stork, 475 So.2d 623 (Ala. 1985); Anderson, 507 So.2d [585] at 583 [(Ala. Cr. App. 1987)]."

Carey v. State, 560 So.2d 1103, 1106 (Ala. Cr. App. 1989). The evidence tended to show that the appellant pushed or backed away from the victim, pointed a gun at the victim, and fired. Such conduct under the facts in this case is consistent with intentional conduct, not reckless conduct. There was evidence that the appellant and the victim exchanged words for a few seconds, but "it is settled law that mere words, no matter how insulting, are never sufficient provocation" to reduce a killing from murder to manslaughter. Carey, 560 So.2d at 1107. There was no evidence that the victim had any weapons or that he attacked the appellant. Furthermore, the victim was 64 years old at the time of the murder and the appellant was 22 years old. The trial did not err in refusing to instruct the jury on manslaughter when such an instruction was not supported by the evidence.

II

The appellant next contends that there was insufficient evidence to convict him of robbery in the first degree. The appellant does not ...


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