Rel: 09/26/2014
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
____________________
1130946
____________________
Ex parte Mary Jacque Bell
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Mary Bell
v.
State of Alabama)
(Baldwin Circuit Court, CC-12-704;
Court of Criminal Appeals, CR-12-1969)
MAIN, Justice.
WRIT DENIED. NO OPINION.
Stuart, Bolin, Parker, Murdock, Shaw, Wise, and Bryan,
JJ., concur.
Moore, C.J., dissents.
1130946
MOORE, Chief Justice (dissenting).
I respectfully dissent from the Court’s decision to deny
Mary Jacque Bell’s petition for a writ of certiorari directed
to the Court of Criminal Appeals. I would grant her petition
to determine whether the trial court erred by refusing to
instruct the jury on an alternative offense to the charged
offense of first-degree robbery.
The evidence reveals the following facts. Nolan Boyington
and Wade Cooper tried to take money from Ryan Stokes outside
Bell's residence. During the encounter, Cooper pointed a gun
at Stokes. Bell, who was away from the premises at the time,
was charged with complicity in first-degree robbery, an
offense that encompasses certain conduct occurring "in the
course of committing a theft." 13A-8-41(a), Ala. Code 1975,
referring to 13A-8-43(a), Ala. Code 1975. Witnesses disputed
whether Bell was aware of the presence of the gun. Over the
State's objection, the trial court denied the State's request
for an instruction on second-degree robbery as a lesser
offense included in the offense of first-degree robbery.
Bell was convicted of complicity in first-degree robbery
and was sentenced to 20 years in prison. The Court of Criminal
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Appeals affirmed her conviction, holding that Bell failed to
preserve for appeal the trial court's refusal to instruct the
jury on second-degree robbery as a lesser-included offense to
first-degree robbery. I disagree.
Rule 21.3, Ala. R. Crim. P., requires a party to object
to the court's failure to give an instruction in order to
preserve that issue for appeal and applies to "the party
requesting the charge," Bullock v. State, 697 So. 2d 66, 67
(Ala. Crim. App. 1997). Rule 21.3 exists "to ensure that
requested charges are timely presented ... and supported by
sufficient evidence." Ex parte Hatfield, 37 So. 3d 733, 738
(Ala. 2009).
The State, not Bell, requested the instruction on second-
degree robbery and objected to the trial court's refusal to
give the instruction. In so doing, the State put the trial
court on notice that an instruction on the lesser-included
offense was appropriate. Additional objection by Bell to the
judge's denial of the State's requested instruction would have
been futile, and "'[t]he law does not require the doing of a
futile act.'" Craft v. State, 90 So. 3d 197, 204 (Ala. Crim.
App. 2011)(quoting Ohio v. Roberts, 448 U.S. 56, 74 (1980)).
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See also Ex parte LaPointe, 926 So. 2d 1055, 1060 (Ala.
2005)(holding that the preservation requirement does not
require "procedural circuity"). The purpose of Rule 21.3 was
achieved without an objection from Bell to the trial court's
refusal to charge on the lesser-included offense.
Bell was entitled to an instruction on second-degree
robbery because two participants "actively present" committed
the offense of robbery, see § 13A-8-42(a), Ala. Code 1975, and
the testimony as to whether Bell knew that a gun would be used
in the robbery was disputed. In order for a defendant charged
with first-degree robbery to be entitled to an instruction on
second-degree robbery, "there must be evidence that the
robbery was committed by two or more persons and that [the
defendant] did not have ... knowledge that an accomplice was
going to [commit the armed robbery]." Ex parte Hannah, 527 So.
2d 675, 677 (Ala. 1988)(holding that the petitioner was not
entitled to an instruction on second-degree robbery because he
knew that his codefendant had a gun). See also Harris v.
State, 398 So. 2d 777, 779 (Ala. Crim. App. 1981)(holding that
the appellant was not entitled to an instruction on second-
degree robbery because he knew that his accomplice was armed
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with a club). The disputed testimony about Bell's knowledge of
the presence of a gun during the robbery entitled her to a
second-degree-robbery instruction.
Finally, although Bell did not so argue, I believe that
the trial court would have been correct in instructing the
jury on attempted robbery in the first or second degree as a
lesser-included offense. An incomplete theft by force could
potentially satisfy the elements of either an attempted
robbery, see 13A-4-2(a), Ala. Code 1975, or a completed
robbery, see Ex parte Verzone, 868 So. 2d 399, 402 (Ala.
2003)(holding that the Code "does not require that a theft be
accomplished for the elements of robbery to be established").1
However, neither the robbery statutes (§§ 13A-8-40 through
-44, Ala. Code 1975) nor the attempt statute (§ 13A-4-2, Ala.
Code 1975) contains language expressly abrogating the offense
of attempted robbery, which is one class lower than completed
robbery, see § 13A-4-2(d), Ala. Code 1975.
1
This Court has concluded that "our robbery statutes now
define robbery as including what formerly would have been an
attempt to commit robbery." Ex parte Curry, 471 So. 2d 476,
478 (Ala. 1984)(emphasis added). However, the attempt statute
expressly provides, without exception, that attempted offenses
are one class lower than their completed counterparts. § 13A-
4-2(d), Ala. Code 1975. I believe that this Court should
revisit its conclusion in Curry.
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"[W]e must consider the statute as a whole and must
construe the statute reasonably so as to harmonize the
provisions of the statute." McRae v. Security Pac. Hous.
Servs., Inc., 628 So. 2d 429, 432 (Ala. 1993). The attempt
statute does not conflict with the robbery statutes because
both attempted robbery and robbery can coexist as separate
offenses. Therefore, I believe that the trial court could have
instructed the jury on attempted robbery in the first or
second degree.2
For the foregoing reasons, I respectfully dissent.
2
Bell could be convicted of attempted robbery even if the
State failed to indict her for attempted robbery. See 13A-1-
9(a)(2), Ala. Code 1975.
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