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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1130946

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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1130946

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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1130946

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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1130946

    "[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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