John Frederick Burton v. State of Alabama
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REL 11/13/2009 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2009-2010 CR-08-0487 John F r e d e r i c k B u r t o n v. S t a t e o f Alabama Appeal WINDOM, from M o b i l e C i r c u i t (CC-08-471) Judge. AFFIRMED BY UNPUBLISHED MEMORANDUM. Wise, P.J., and Kellum dissents Court with opinion. and Main, J J . , concur. Welch, J., CR-08-0487 WELCH, J u d g e , John dissenting. F r e d e r i c k Burton manslaughter, his a violation sentence indicted o f 17 by a ultimately a denial jury unpublished trial A l a . Code Burton jury was lesser-included file any and originally but offense postjudgment was of motions. of h i s request memorandum, affirms requested that the r e c o r d d i d not when he killed stated majority's appeal, the this trial Court, indicate victim, below, Burton Francisco of the facts was Randolph. I must r e s p e c t f u l l y summary unpublished that in i t s court's denial criminal-negligence instruction, the following On objecting for the deliberate. by for the to negligence 1975, f o r murder court's denial criminal Burton's The the conviction to retired reasons 13A-6-3, grand d i d not his s t a t i n g h i s grounds f o r the i n s t r u c t i o n b e f o r e and on from in prison. of Burton charge § County convicted p r e s e r v e d the jury of years Mobile manslaughter. Burton appealed holding negligent For the from the dissent. is taken memorandum: "On S e p t e m b e r 8, 2 0 0 7 , t h e v i c t i m , F r a n c i s c o Randolph, called Burton and asked i f he could accompany B u r t o n to h i s female impersonator show t h a t e v e n i n g . R a n d o l p h d r o v e B u r t o n ' s t r u c k so t h a t B u r t o n c o u l d p r e p a r e f o r t h e show. Burton believed t h a t R a n d o l p h h a d b e e n d r i n k i n g ; h o w e v e r , he d i d n o t 2 of CR-08-0487 b e l i e v e t h a t R a n d o l p h was t o o i m p a i r e d t o d r i v e . When i t was t i m e t o p e r f o r m , B u r t o n c o u l d n o t l o c a t e R a n d o l p h a n d n o t i c e d t h a t h i s t r u c k was m i s s i n g . "Randolph l e f t t h e c l u b i n B u r t o n ' s t r u c k and went t o J a n i c e N i c h o l s o n ' s house. They went t o t h e store i n Burton's truck i n which Nicholson observed fake f i n g e r n a i l s , s c i s s o r s , and a f i l e . "Randolph r e t u r n e d t o t h e Rainbow Lounge and a p p e a r e d t o be t o o i n t o x i c a t e d t o d r i v e . After B u r t o n f i n i s h e d h i s performance and r e c e i v e d h i s m o n e y , he l e f t t h e R a i n b o w L o u n g e w i t h J a m e s G r a y , T i m o t h y McGee, a n d R a n d o l p h , w i t h G r a y driving. B u r t o n was a n g r y t h a t R a n d o l p h h a d t a k e n h i s t r u c k without permission. Randolph apologized, but Burton was s t i l l a n g r y a n d t h r e w a s o f t d r i n k o n R a n d o l p h . A t a s t o p l i g h t , t h e t w o men e x i t e d t h e v e h i c l e a n d continued t o argue. Gray stated that '[Randolph] was walking toward [ B u r t o n ] a n d [ B u r t o n ] was f l i n c h i n g , f l i c k i n g the scissors, l i k e , [Randolph], d o n ' t come c l o s e t o me, d o n ' t come c l o s e t o me. A n d [ R a n d o l p h ] w a l k e d i n t o t h e -- he w a l k e d i n t o t h e scissors.' (R. 166). G r a y a n d McGee b o t h saw B u r t o n w i t h s c i s s o r s i n h i s hand, b u t d i d n o t see a n y t h i n g i n Randolph's hand. B u r t o n c l a i m e d t h a t he p i c k e d up t h e s c i s s o r s t o move t h e m a n d n o t i c e d t h a t R a n d o l p h was ' c h a r g i n g ' a t h i m a n d r a n i n t o t h e s c i s s o r s . (R. 4 9 1 - 9 3 . ) "As Randolph was a t t e m p t i n g to reenter the truck, Burton h i t him w i t h the door. Randolph s a i d t h a t he h a d b e e n s t a b b e d a n d n e e d e d t o b e t a k e n t o the h o s p i t a l . Once i n t h e t r u c k , R a n d o l p h c o n t i n u e d t o c o m p l a i n a n d B u r t o n t h r e a t e n e d t o make h i m g e t out o f t h e v e h i c l e and e v e n t u a l l y d i d s o . Burton t o l d Gray to drive o f f . " A s t h e y w e r e l e a v i n g , McGee t u r n e d a r o u n d a n d saw R a n d o l p h f a l l onto t h e ground and c o n v i n c e d B u r t o n t o go b a c k a n d g e t R a n d o l p h . B y t h e t i m e t h e y g o t R a n d o l p h i n t o t h e v e h i c l e , he was u n r e s p o n s i v e 3 CR-08-0487 and b l e e d i n g f r o m a g a s h i n h i s c h i n and a wound i n his chest. R a n d o l p h h a d a s t a b wound t o h i s c h e s t over the l e f t n i p p l e , w h i c h was c o n s i s t e n t with b e i n g s t a b b e d w i t h open s c i s s o r s . The s t a b wound p e n e t r a t e d Randolph's r i bcage and h e a r t . " Citing the Ball v. S t a t e , majority holds indicate that Randolph i n i t s memorandum because, Burton had 489 S o . 2 d 675 Burton was acting i t reasons, been 'flicking' n e g l i g e n t l y when the record the scissors take of at t r i a l that also d i d not he killed up Randolph based as h i s hands Burton a while a t him. i t s ruling a f t e r the stabbing, that (R. on t h e refused to R a n d o l p h t o t h e h o s p i t a l a n d t h a t he f o r c e d R a n d o l p h o u t the truck. However, his majority held at t h e s c i s s o r s a s R a n d o l p h was ' c h a r g i n g ' testimony intentionally 1986), "establishes holding The App. the record and 492-93.)" he that warning 166, that (Ala. Crim. own using at t r i a l , behalf. On Burton testified the night of the stabbing, scissors to cut h i s fingernails, the truck, (R. 487.) toward he p l a c e d Randolph the rear punches. and Burton Burton Burton began and b o t h of the v e h i c l e . arguing men outside began t h e n b a c k e d up a n d t o l d 4 was a n d when he g o t o u t o f t h e s c i s s o r s on t h e s e a t of the truck, (R. 4 8 9 . ) t o t h e f o l l o w i n g on to and throw Randolph, CR-08-0487 "'You you know w h a t just Burton began Randolph the go to the front i n order told stated, "'Carlos to get a t t e n t i o n Burton shirt and t h a t 493-94.) B u r t o n was (R. 4 9 3 . ) I think up ... he n o t see any b l o o d continued to as a minute was (R. [t]here you c u t you.'" I didn't Randolph "'stupid After ... b e q u i e t again. (R. y o u c u t me.'" that Randolph but holding. he was testified could the truck, As B u r t o n p i c k e d Burton that "'John, of (R. 4 8 9 . ) t o s i t down, R a n d o l p h r a n i n the truck. Burton replied, trying (R. 4 9 0 . ) of scissors then and g o t back 493.) (R. pair Randolph so, Randolph 493.) back from the seat t h e opened l e a v e you where you're a t and and I ' l l see you tomorrow.'" came up b e h i n d h i m . 491-92.) hell'" home to walk scissors toward or walk ... I [ s i c ] j u s t (R. wearing a black on h i s c l o t h i n g . insist that he was i n j u r e d , b u t B u r t o n d i d n o t b e l i e v e h i m , became i r r i t a t e d , and asked Randolph to get out of the v e h i c l e . (R. 4 9 4 . ) Randolph got men about out of the truck. (R. 495.) The drove q u a r t e r o f a m i l e when o n e o f t h e o t h e r p a s s e n g e r s s t a t e d he saw R a n d o l p h f a l l the vehicle around, i n the street. returned to (R. 4 9 5 - 9 6 . ) Randolph, got a that They turned out of the v e h i c l e , a n d saw t h a t R a n d o l p h was b l e e d i n g a n d n o n r e s p o n s i v e . 5 CR-08-0487 (R. 496-97.) the truck, In Burton t h e n p i c k e d up R a n d o l p h , and they drove Randolph Alabama, "[a] person with respect to a result by statute substantial or that 1975. as an offense when and u n j u s t i f i a b l e creating.'" App. 1999) was he risk criminal fails negligence § Gargus v. S t a t e , perceive 13A-2-2(4), of a jury will State, instruction where the 627 So. victim's harm o f w h i c h creation aware of the instruction risk v. S t a t e , death ( A l a .Crim. negligent was and subsequent App. App. 1996) (Ala. Crim. A k i n v. S t a t e , (quoting Wiggins App. 1 9 8 6 ) ) . 6 was (Ala. Crim. by Quinlivan 1 992). "'An i s proper homicide caused he 586 S o . 2 d 2 6 7 , 272 only the disregard defendant's of a r i s k he s h o u l d h a v e b e e n a w a r e , b u t w h i c h was n o t a w a r e o f . ' " 1048 1082 on c r i m i n a l l y inadvertent Crim. 2d occur A l a . Code ( A l a . C r i m . A p p . 1 9 9 1 ) ) , o v e r r u l e d on o t h e r g r o u n d s , v. a ' t h e r e m u s t b e some e v i d e n c e 764 S o . 2 d 5 6 5 , 567 (quoting McLaughlin i s defined the result the giving not to that exists." "In order to warrant defendant with (R. 4 9 8 . ) or to a circumstance which the circumstance the to the hospital. acts on c r i m i n a l l y n e g l i g e n t h o m i c i d e , that and p u t him i n i n fact 698 S o . 2 d 2 2 8 , 2 3 3 v. S t a t e , of he (Ala. 491 S o . 2 d 1 0 4 6 , CR-08-0487 In Bridges v. State, 504 So. 2d 1987), the defense p r o f f e r e d a theory was a c c i d e n t a l l y pushed This Court defendant held was a jury offenses a the and of held App. that the v i c t i m by theory because charge (Ala. Crim. at t r i a l knife because reasonable intoxication, included that onto 1223 the defendant. proffered by the manslaughter was evidence required was there on the and of lesser- criminally negligent 742 20 6 ( A l a . homicide. Further, Crim. wife App. i n Koppersmith 1999), b i t him the before defendant he unaware when he slammed h e r head a g a i n s t this theory there was negligent homicide because concluded that defendant might testified caused at trial her that to f a l l to his the his wife's a jury jury could held charge the head This the ground. d i d not 2d Court on criminally have reasonably perceive that his wife d i e of h i s a c t i o n s . By Crim. So. a b r i c k under warranted the State, reflexively ground, that that v. contrast, App. criminal i n Akin 1986), negligence intentionally this was injected v. State, Court 698 held So. that 2d 228, a jury not warranted because the victim 7 with an "the 234 (Ala. charge on appellant overdose of CR-08-0487 lidocaine with the intent 'flat line.'" which the jury could of In Akin, S o . 2 d 225 Here, basis there found have was that (Ala. Crim. for a verdict Burton evidence upon scissors before See a l s o B e r r y 1996). and B r i d g e s , there was using i s a rational homicide. (Ala. Crim. scissors App. to See 1985). clip his t h e v e h i c l e and t o s i t down when R a n d o l p h rushed upon t h e s c i s s o r s , i n t e n t i o n a l a c t than Burton testified when he s a i d that black shirt. volition, that Randolph f a l l he t h o u g h t he was w o u n d e d himself testified to take before he passengers to assist placed on The saw Randolph. Randolph him to the h o s p i t a l . 8 Randolph and t h a t one o f t h e o t h e r that that got out of the v e h i c l e of t o the ground, they returned Burton i n Akin. d i d n o t see any b l o o d Randolph and once moving the the a c t committed g o t o u t o f t h e c a r , he Randolph's vehicle State, merely joking Finally, v. he was Further, own aware the vehicle, a much l e s s Randolph he from was t h e argument began o u t s i d e reentering presented of c r i m i n a l l y negligent that i n him a the appellant 476 S o . 2 d 1 1 6 , 119 testified fingernails that App. as i n K o p p e r s m i t h Lawson v. S t a t e , his him or t o induce the consequences of h i s a c t i o n s . 698 was to k i l l i n the majority CR-08-0487 cites Ball that there negligent i n i t s memorandum b e c a u s e was no r a t i o n a l homicide. at least four he h a d one c h e s t consistent the ground. believe his could o f open have negligence testimony of defense evidence and t h a t t h e v i c t i m was wound, p e n e t r a t i n g the heart, caused Because from this a reasonable, the t r i a l I believe fall Court a court that that w h i c h was cut to to the need not o f t h e i n c i d e n t b u t must o n l y to warrant held stabbed s c i s s o r s , and a s m a l l been (R. 3 1 5 , 3 1 9 , 3 2 5 . ) theory a stab a pair Burton's Court whereas Randolph's autopsy r e v e a l e d which sufficient such times, this f o r a v e r d i c t of c r i m i n a l l y However, i n B a l l , with chin, basis in Ball there on find was jury charge criminal erred i n refusing to give charge. Therefore, f o r the reasons from the m a j o r i t y ' s unpublished stated above, I must dissent memorandum a f f i r m i n g B u r t o n ' s conviction. 9
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