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Nash v. State

Alabama Court of Criminal Appeals

February 10, 2017

David Michael Nash
v.
State of Alabama

         Appeal from Montgomery Circuit Court (CC-12-806)

          KELLUM, JUDGE.

         David Michael Nash was indicted for murder made capital because it was committed for pecuniary gain or pursuant to a contract or for hire. See § 13A-5-40(a)(7), Ala. Code 1975. The jury found Nash guilty of felony murder during a robbery. See § 13A-6-2(a)(3), Ala. Code 1975. The trial court sentenced Nash to 28 years' imprisonment.

         The dispositive issue in this appeal is whether felony murder during a robbery is a lesser-included offense of murder made capital because it was committed for pecuniary gain or for hire as charged in Nash's indictment. Nash argues that felony murder during a robbery is not a lesser-included offense of capital murder for pecuniary gain or for hire as charged in his indictment because, he says, it does not satisfy the requirements in § 13A-1-9(a), Ala. Code 1975. The State does not dispute that felony murder during a robbery is not a lesser-included offense of capital murder in this particular case. Rather, the State's sole argument on appeal is that Nash failed to properly preserve this issue for appellate review. We hold that Nash properly preserved this issue for review and that felony murder during a robbery is not a lesser-included offense of capital murder for pecuniary gain or for hire as charged in Nash's indictment.

         At the close of the State's case, Nash moved for a judgment of acquittal on the indicted charge of capital murder for pecuniary gain or for hire. The trial court took the matter under advisement but did not issue a ruling. During the charge conference, Nash renewed his motion for a judgment of acquittal, and the following occurred:

"THE COURT: The Court has paid close attention to the testimony in this case. The Court is going to grant the motion and dismiss and acquit the defendant on murder for hire. The Court will allow this case to go to the jury on felony murder under 13A-2-23.[1]
"[DEFENSE COUNSEL]: Judge, we also would like to object to the case going to the jury on felony murder on the ground that there is insufficient evidence to send it to the jury on felony murder for those same reasons we just detailed, and also that it's not a lesser included offense of the crime charged.
"THE COURT: Your motion is denied."

(R. 647-48; emphasis added.) The State argues that Nash's objection to the trial court's instructing the jury on felony murder failed to include the word "robbery" and, therefore, was not sufficiently specific to preserve for review his argument on appeal that felony murder during a robbery is not a lesser-included offense of capital murder for pecuniary gain or for hire as charged in his indictment. We disagree.

         "'The purpose of requiring a specific objection to preserve an issue for appellate review is to put the trial judge on notice of the alleged error, giving an opportunity to correct it before the case is submitted to the jury.'" Ex parte Coulliette, 857 So.2d 793, 794-95 (Ala. 2003) (quoting Ex parte Works, 640 So.2d 1056, 1058 (Ala. 1994)). "An objection must be specific enough to put the trial court on notice of any alleged error and provide the court with an opportunity to correct any error if necessary." Finch v. State, 715 So.2d 906, 912 (Ala.Crim.App.1997). However, "magic words" are not required as long as it is clear from the record that the trial court was aware of the basis of the objection. See, e.g., Ex parte Hatfield, 37 So.3d 733, 736-38 (Ala. 2009), and Ex parte Weaver, 763 So.2d 982, 986 (Ala. 1999).

         This is not a case in which Nash failed to state any grounds in support of his objection. See, e.g., Lawrence v. State, 409 So.2d 987, 989 (Ala.Crim.App.1982) ("An objection without specifying a single ground, such as 'I object, ' 'objection, ' or 'we object' is not sufficient to place the trial court in error for overruling the objection."). Rather, in lodging his objection to the trial court's instructing the jury on felony murder, Nash specifically argued that felony murder was not a lesser-included offense of the indicted charge of capital murder for pecuniary gain or for hire. Nash's objection was specific enough to put the trial court on notice that Nash did not believe that felony murder -- whether the underlying felony was robbery or any other felony enumerated in § 13A-6-2(a)(3), Ala. Code 1975 -- was a lesser-included offense of the indicted charge. Indeed, the record clearly indicates that the trial court was on notice of the error alleged by Nash --after further discussion, the court specifically stated that felony murder "is a lesser included offense." (R. 649.) Therefore, Nash properly preserved this issue for appellate review.

         Section 13A-1-9(a), Ala. Code 1975, provides:

"(a) A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:
"(1) It is established by proof of the same or fewer than all the facts required to establish the commission of ...

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