Appeal from Houston Circuit Court (CC-13-1088)
Steven Paul Morris was convicted of first-degree burglary, a violation of § 13A-7-5, Ala. Code 1975. He was sentenced to 240 months in prison.
The evidence presented at trial disclosed the following. Cortney Burns and Morris were involved in a romantic relationship for approximately a year before Burns broke off the relationship. According to Burns, Morris had become mentally, verbally, and physically abusive in the months leading up to the breakup. Morris, who had been living with Burns in a mobile home, would often disappear for days at a time. After the couple ended their relationship, Morris moved out of the mobile home. The couple, however, maintained contact, mostly by telephone. In May 2013, Burns was injured in a car accident, and Morris came to the mobile home to check on Burns. While at the mobile home, Morris saw text messages from other men on Burns's cellular telephone and became upset. He struck Burns three times in the back of the head. Morris left the mobile home, and Burns telephoned the police.
On May 31, 2013, three days after the incident described above, between 1:30 a.m. and 2:30 a.m., Morris entered Burns's mobile home through an air vent in the floor. Burns, who had been asleep in the recliner in the living room, demanded that Morris leave. Morris refused. Burns, upset and afraid, dialed emergency 911 on her cellular telephone and placed the telephone in her pocket. The call became disconnected, and the emergency operator telephoned Burns. Morris grabbed the telephone from Burns and told the emergency operator that Burns was not there. Nevertheless, police officers were dispatched to Burns's residence. Morris became angry at Burns for calling emergency 911. Morris yelled and screamed at Burns. Burns sat in her recliner as Morris walked into the kitchen and got a knife. Morris stood in front of Burns, pointing and shaking the knife, while screaming and cursing at Burns for calling emergency 911. Burns testified that she felt threatened and was afraid that Morris would hurt her. When police vehicles approached the mobile home, Morris, seeing their headlights, climbed out the bedroom window, taking Burns's cellular telephone and the knife with him. Morris was apprehended later that morning in the woods nearby.
Morris testified that he had entered the mobile home on the night of May 31, 2013, when Burns let him in through the sliding-glass door. Morris admitted that he had picked up a knife from the kitchen, but he testified that he had not threatened Burns with the knife.
At the conclusion of the evidence the jury returned a verdict of guilty of first-degree burglary.
On appeal, Morris contends that the trial court erred in refusing to give the jury an instruction on second-degree burglary as a lesser-included offense to the offense of first-degree burglary.
"'It has long been the law in Alabama that a [circuit] court has broad discretion in formulating jury instructions, provided those instructions are accurate reflections of the law and facts of the case.' Culpepper v. State, 827 So.2d 883, 885 (Ala.Crim.App.2001) (citing Knotts v. State, 686 So.2d 431, 456 (Ala.Crim.App.1995)). The circuit court's broad discretion, however, is fettered by a defendant's 'right to have the court charge on the lesser offenses included in the indictment, when there is a reasonable theory from the evidence supporting his position.' Jones v. State, 514 So.2d 1060, 1063 (Ala.Crim.App.1987) (citing Wiggins v. State, 491 So.2d 1046 (Ala.Crim.App.1986); Chavers v. State, 361 So.2d 1106 (Ala. 1978); and Fulghum v. State, 277 So.2d 886 (Ala. 1973))."
Barrett v. State, 33 So.3d 1287, 1288 (Ala.Crim.App.2009).
The State argues that this issue was not preserved for appellate review. The record indicates that after the trial court denied his motion for a judgment of acquittal, Morris asked for an instruction on second-degree burglary:
"[DEFENSE COUNSEL]: Judge, I will say that I am going to request the lesser-included charge of burglary in the second degree. And under Title 13A-7-6-(b), which is burglary in the second degree, it says the difference between first degree and burglary second degree is the issue of whether or not the defendant threatens the alleged victim with the immediate use of a deadly weapon, not that the victim is terrified.
"THE COURT: Burglary in the first degree is intended to preserve human life and ...