Released for Publication June 10, 2015.
Baldwin Circuit Court, CC-12-704; Court of Criminal Appeals, CR-12-1969. Charles J. Norton, Trial Judge.
For Petitioner: Frederick G. Helmsing, Jr., of McDowell Knight Roedder & Sledge, LLC, Mobile.
MAIN, Justice. Stuart, Bolin, Parker, Murdock, Shaw, Wise, and Bryan, JJ., concur. Moore, C.J., dissents.
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS
WRIT DENIED. NO OPINION.
Stuart, Bolin, Parker, Murdock, Shaw, Wise, and Bryan, JJ., concur.
MOORE, Chief Justice (dissenting).
I respectfully dissent from the Court's decision to deny Mary Jacque Bell's petition for a writ of certiorari directed to the Court of Criminal Appeals. I would grant her petition to determine whether the trial court erred by refusing to instruct the jury on an alternative offense to the charged offense of first-degree robbery.
The evidence reveals the following facts. Nolan Boyington and Wade Cooper tried to take money from Ryan Stokes outside Bell's residence. During the encounter, Cooper pointed a gun at Stokes. Bell, who was away from the premises at the time, was charged with complicity in first-degree robbery, an offense that encompasses certain conduct occurring " in the course of committing a theft." 13A-8-41(a), Ala. Code 1975, referring to 13A-8-43(a), Ala. Code 1975. Witnesses disputed whether Bell was aware of the presence of the gun. Over the State's objection, the trial court denied the State's request for an instruction on second-degree robbery as a lesser offense included in the offense of first-degree robbery.
Bell was convicted of complicity in first-degree robbery and was sentenced to 20 years in prison. The Court of Criminal Appeals affirmed her conviction, holding that Bell failed to preserve for appeal the trial court's refusal to instruct the jury on second-degree robbery as a lesser-included offense to first-degree robbery. I disagree.
Rule 21.3, Ala. R. Crim. P., requires a party to object to the court's failure to give an instruction in order to preserve that issue for appeal and applies to " the party requesting the charge," Bullock v. State,697 So.2d 66, 67 (Ala.Crim.App. 1997). Rule 21.3 exists " to ensure that requested charges are timely presented ... and supported by ...