[Copyrighted Material Omitted]
from Madison Circuit Court (CC-17-307).
Atkins, Huntsville, for appellant.
Marshall, atty. gen., and Robin D. Scales, asst. atty. gen.,
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.
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.
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
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.
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.
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.
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.
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.)
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.
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 ...