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Collier v. State

Alabama Court of Criminal Appeals

April 26, 2019

Alfonso COLLIER,
v.
STATE of Alabama.

Page 962

[Copyrighted Material Omitted]

Page 963

         Appeal from Madison Circuit Court (CC-17-307).

         Erin Atkins, Huntsville, for appellant.

          Steve Marshall, atty. gen., and Robin D. Scales, asst. atty. gen., for appellee.

         McCOOL, Judge.

         Alfonso Collier was originally indicted for one count of murder, see § 13A-6-2, Ala. Code 1975. Collier was ultimately convicted of the lesser-included offense of criminally negligent homicide, see § 13A-6-4, Ala. Code 1975. On April 20, 2018, he was sentenced to 12 months' imprisonment; that sentence was split, and he was ordered to serve 6 months in jail with the remainder of the sentence to be suspended, with Collier to serve 2 years on supervised probation. Collier was also ordered to pay a $150 Victims Compensation Fund assessment, a $750 bail-bond fee, court costs, and attorney fees. Collier's incarceration was initially deferred; however, after Collier failed to turn himself in to law enforcement to begin serving his term of imprisonment, Collier was arrested. Following a motion from the State, the court subsequently resentenced Collier on May 17, 2018, to 12 months' imprisonment. That sentence was split, and he was ordered to serve 11 months' imprisonment, followed by 2 years' probation.

         The following evidence was presented at trial. Maricia Foster testified that on April 17, 2016, she was at the home of her

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daughter, Laricia Foster, with Laricia and Laricia's children. Maricia's other daughter, Leshay, and Leshay's children were also there. Additionally, Collier, Collier's brother, and Collier's mother were at Laricia's house. Collier and Laricia were engaged to be married. According to Maricia, Collier and Laricia had been to a birthday party earlier in the day and, when they returned to the house between 8 and 9 P.M., the couple was "bickering." (R. 106.) Maricia testified that she and Laricia were in Laricia's bedroom watching television when Collier came into the bedroom to inform Laricia that he was going to take his brother home. Laricia told Collier to return quickly because Laricia believed Collier always stayed gone too long.

         According to Maricia, after Collier had been gone for a while, Laricia became agitated. When Collier finally did return to the house, he and Laricia began arguing. Shortly thereafter, Laricia and Collier went outside on the front porch and continued arguing. Maricia then heard Laricia call for her and said "get him off of me." (R. 109.) Maricia looked out the peephole in the front door and saw that Collier had Laricia "pinned up" against the front door. (R. 109.) Maricia went out the back door of the house and went around to the front of the house. Collier was holding Laricia's hands up and he had Laricia "pressed against the door." (R. 110.) Laricia and Collier eventually moved out into the front yard, still arguing.

         According to Maricia, she heard Laricia say "[O]h, so now you're going to pull your gun on me." (R. 112.) Maricia turned and saw Collier and Laricia standing face-to-face in front of Laricia's car. Maricia stated that she could see Collier holding a gun behind his back. Laricia and Collier continued arguing and began "struggling" with one another. (R. 120.) According to Maricia, Laricia lost her balance and began to fall on her back. Collier also began to fall on top of Laricia. Maricia testified that, as Collier was falling, he pointed the gun at Laricia and pulled the trigger. Maricia testified that she began yelling at Collier for shooting Laricia and then telephoned the police. She stated that, as she was on the telephone, she saw Collier searching for something, which was later determined to be the gun, which he had apparently dropped. Collier ran to the back of Laricia's house with the gun. Collier later came back to the front of the house and, according to Maricia, insisted that he did not shoot Laricia; instead, he said, he had shot the ground. Collier tried to rouse Laricia and kept saying "no, no, no," as if in disbelief. (R. 124.) Laricia died as a result of the gunshot wound.

         Dr. Valerie Green, a medical examiner for the Alabama Department of Forensic Sciences ("DFS"), performed the autopsy on Laricia. Dr. Green testified that Laricia sustained a gunshot wound from a shot fired at close range. Dr. Green estimated that the barrel of the gun was less than an inch from Laricia's body when the gun was fired. The bullet entered Laricia's left breast and went through her heart, diaphragm, ribs, liver, and adrenal gland. The bullet exited Laricia's body through the right side of her lower back.

         Collier testified on his own behalf at trial. Collier admitted that he and Laricia had been arguing. According to Collier, when Maricia came outside, he went toward the automobile to retrieve his gun from under the front passenger seat of the car; he said that he intended to leave Laricia's house to walk to the store to wait on his ride to pick him up. Collier testified that he retrieved his gun and closed the car door. Collier claimed that as he began walking toward the front of the car and was putting the gun in his waist band, Laricia began hitting him on the back of his head and then grabbed his wrist and

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the gun. Laricia then "fell over the [car]." (R. 239.) According to Collier, when Laricia fell, he also fell and, when they hit the ground, the gun went off. Collier testified that the gun was loaded, did not have the safety engaged, and had a bullet in the chamber when it was in the car. Collier maintained that he did not mean to shoot Laricia. According to Collier, although he panicked and hid the gun in the backyard, he ultimately told the officers where the gun was located. Collier did not leave the scene; he was present when the officers arrived.

         After both sides rested and the circuit court instructed the jury on the applicable principles of law, the jury found Collier guilty of criminally negligent homicide.

         I.

         First, Collier claims that there was insufficient evidence to support his conviction for criminally negligent homicide. Specifically, he alleges that "an accidental death does not confer criminal liability on the accused" and, thus, that his conviction is due to be reversed because the evidence suggests that Laricia's death was an accident. (Collier's brief, at 10.)

         Initially, we question whether Collier's claim challenging the sufficiency of the evidence was properly preserved for appellate review. It is well settled that

"`[r]eview on appeal is restricted to questions and issues properly and timely raised at trial.' Newsome v. State, 570 So.2d 703, 717 (Ala.Crim.App. 1989). `An issue raised for the first time on appeal is not subject to appellate review because it has not been properly preserved and presented.' Pate v. State, 601 So.2d 210, 213 (Ala.Crim.App. 1992). `"[T]o preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof."' McKinney v. State, 654 So.2d 95, 99 (Ala.Crim.App. 1995) (citation omitted). `The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.' Ex parte Frith, 526 So.2d 880, 882 (Ala. 1987). `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 Works, 640 So.2d 1056, 1058 (Ala. 1994)."

Ex parte Coulliette, 857 So.2d 793, 794-95 (Ala. 2003). A challenge to the sufficiency of the evidence must be raised in a motion to exclude, a motion for a judgment of acquittal, or a motion for a new trial. See Washington v. State, 555 So.2d 347 (Ala.Crim.App. 1989). A motion for a judgment of acquittal on the charged offense will not preserve for appellate review a challenge to the sufficiency of the evidence to support a conviction for a lesser-included offense. See Ellis v. State, 641 So.2d 333 (Ala.Crim.App. 1994); Washington, supra.

         Although Collier raised the sufficiency-of-the-evidence claim in his motion for a new trial, which would usually be sufficient to preserve the issue for appeal, the following occurred when the State rested its case during trial:

"[Defense counsel:] Judge, at this time it's going to be a rather unusual motion. Defense is going to make a motion for judgment of acquittal at this time to the offense of murder. The [defense] will concede that the lesser included offenses should go to the jury.

".... "[Defense counsel:] ... The defense will concede that there is sufficient evidence for the remaining lesser charges to go to the jury for consideration."

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(R. 226.) Defense counsel subsequently stated:

"Certainly I think the reckless and the negligent elements, there's been sufficient evidence for those for them at least to consider. We still would contend — you know, obviously contend that no crime has occurred. But I think in good faith I'd have to say that I think that those charges should go before the jury."

(R. 226-27.) At the conclusion of the presentation of all the evidence, defense counsel renewed its motion for a judgment of acquittal. We question whether Collier's apparent concession during trial that the State had presented sufficient evidence to warrant a determination from the jury on criminally negligent homicide would constitute a ...


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