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Collier v. State

Alabama Court of Criminal Appeals

April 26, 2019

Alfonso Collier
State of Alabama

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

          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 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 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.


         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."

(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 waiver of his right to later raise that specific issue in a motion for a new trial.

         However, even assuming, without deciding, that Collier's sufficiency-of-the-evidence claim was properly preserved for appellate review by raising it in his motion for new trial, Collier is not entitled to relief on that claim because his claim is meritless.

         The role of this Court when reviewing a challenge to the sufficiency of the evidence is well settled:

"'"In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution."' Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala. 1985). '"The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt."' Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O'Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). '"When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision."' Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). 'The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.' Ex parte Bankston, 358 So.2d 1040, 1042 (Ala. 1978).
"'The trial court's denial of a motion for judgment of acquittal must be reviewed by determining whether there was legal evidence before the jury at the time the motion was made from which the jury by fair inference could find the defendant guilty. Thomas v. State, 363 So.2d 1020 (Ala. Cr. App. 1978). In applying this standard, this court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala. Cr. App. 1983). When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for judgment of acquittal does not constitute error. McConnell v. State, 429 So.2d 662 (Ala. Cr. App. 1983).'"

Gavin v. State, 891 So.2d 907, 974 (Ala.Crim.App.2003), cert. denied, 891 So.2d 998 (Ala. 2004)(quoting Ward v. State, 610 So.2d 1190, 1191 (Ala.Crim.App.1992)).

         Section 13A-6-4(a), Ala. Code 1975, provides: "A person commits the crime of criminally negligent homicide if he or she causes the death of another person by criminal negligence." Section 13A-2-2(4), Ala. Code 1975, defines "criminal negligence" as follows:

"A person acts with criminal negligence with respect to a result or to a circumstance which is defined by statute as an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation."

         In Jones v. State, 514 So.2d 1060 (Ala.Crim.App.1987), in which Jones, who had been convicted of murder, argued that the trial court erred in refusing to charge the jury on criminally negligent homicide as a lesser-included offense, this Court stated:

"The only difference between manslaughter under § 13A-6-3(a)(1) and criminally negligent homicide is the difference between recklessness and criminal negligence.
"'A common denominator in both is that in each instance the underlying conduct must involve a "substantial and unjustifiable risk" that a result or circumstance described in the penal statute will occur or exists. The reckless offender is aware of the risk and "consciously disregards" it. On the other hand, the criminally negligent offender is not aware of the risk created ("fails to perceive") and, therefore, cannot be guilty of consciously disregarding it.'
"Commentary to § 13A-2-2, Code of Alabama 1975.
"'The difference between the terms "recklessly" and "negligently," ... is one of kind, rather than degree. Each actor creates a risk of harm. The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it.'
"C. Torcia, 1 Wharton's Criminal Law, § 27 (14th ed. 1978)(emphasis in original).
"'Negligence "is distinguished from acting purposefully, knowingly, or recklessly in that it does not involve a state of awareness. It is the case where the actor creates inadvertently a risk of which he ought to be aware, considering its nature and degree, the nature and the purpose of his conduct and the care that would be exercised by a reasonable person in his situation." Commentary to Section 13A-6-4.'
"Phelps v. State, 435 So.2d at 164 (emphasis in Phelps).

" 514 So.2d at 1065.

         In the present case, the following transpired during the State's cross-examination of Collier:

"[State:] ... [Y]ou know that gun was loaded, right?
"[Collier:] Yes.
"[State:] You know that that gun had one in the chamber, right?
"[Collier:] Yes.
"[State:] And you knew that gun was cocked, ...

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