Ex Parte Simmons
Michael Anthony Simmons was convicted of reckless murder, pursuant to
A three-year-old child was killed by a bullet fired from a gun while he was a passenger in his mother‘s automobile. The mother testified that she was driving down a public street when she noticed several men in a pickup truck shooting guns in her direction. She stated that she recognized the man on the back of the truck as the defendant, Simmons. She also testified that she observed several other people on the street, one of whom she recognized as Vernon “Blue” Peterson. She testified that Peterson appeared to be the target of the gunfire. At some point during the gunfire, the child was killed when a bullet entered the car and struck him in the head.
The bullet that killed the child exited the back of his head and was not recovered. Another bullet was recovered from the car in which the child was riding, and an expert witness testified that it was either a 9 mm., a.38 caliber, or a .357 caliber bullet. The expert witness testified that the fatal shot could have been fired from a weapon having any one of those three calibers. A total of 11 expended 9 mm. cartridge cases and 6 expended.38 special cartridge cases were found at the scene; some were found in the bed of the pickup truck and some were found on the street. An expert witness testified that the 9 mm. cartridges had been fired by two different weapons and that at least three different weapons had been fired at the scene. He further stated that, based upon his expertise, he believed that the bullet that killed the child could have been fired from any of the revolvers and semi-automatic pistols that were used in the shoot-out. However, it could not be determined from the evidence presented which of the men fired the fatal shot.
Although he was indicted for murder on two different theories, Simmons was eventually tried and convicted pursuant to
“did, under circumstances manifesting extreme indifference to human life, recklessly engage in conduct which created a grave risk of death to a person other than himself, to-wit: by firing a gun numerous times on a crowded street and in the direction of said crowd, and thereby caused the death of another person, to-wit: Leonard Rivers....”
The State proceeded under a theory of accomplice liability. The State conceded at trial and on appeal that it could not prove that Simmons fired the shot that killed the child. However, it contends that the evidence proves that Simmons aided and abetted in the reckless conduct that resulted in the death of the child.
I.
(State‘s Petition—No. 1920431)
The Court of Criminal Appeals held that the trial court erroneously instructed the jury that Simmons could be convicted of reckless murder on a theory of complicity. Essentially, the court held that it is “incompatible within the same charged offense” to say that one intends to promote or assist the
Section
“(a) A person commits the crime of murder if:
“. . . .
“(2) Under circumstances manifesting extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to a person other than himself, and thereby causes the death of another person....”
This section deals with “reckless murder” or, as it is sometimes called, “universal malice murder” or “depraved heart murder.” It requires the prosecution to prove conduct that manifests an extreme indifference to human life and not to the life of any particular person. The purpose of
Alabama‘s complicity statute,
“A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
“(1) He procures, induces or causes such other person to commit the offense; or
“(2) He aids or abets such other person in committing the offense; or
“(3) Having a legal duty to prevent the commission of the offense, he fails to make an effort he is legally required to make.”
This section provides the basic principles for determining criminal liability that is based upon the behavior of another person. It sets out the type of action required and the necessary mental state.
In Ex parte Howell, 431 So.2d 1328 (Ala. 1983), this Court addressed the issue of accomplice liability. There, the defendant, the victim, and the co-defendant were in a room together. The co-defendant was showing the victim a pistol when the defendant exploded some firecrackers in the house. The pistol fired and the bullet struck the victim, killing him. The defendant was charged with manslaughter, but was convicted of the lesser included offense of criminally negligent homicide. The Court of Criminal Appeals affirmed the conviction. On certiorari review, the only issue before this Court was whether a conviction of criminally negligent homicide by way of complicity was inconsistent.
This Court held that a defendant could not be convicted of criminally negligent homicide under a complicity theory, because, it said, complicity and criminally negligent homicide are “fundamentally inconsistent.” Howell, supra, at 1330. The Court further said that it is logically impossible to be an accomplice to a criminally negligent homicide. However, Howell does not stand for the proposition that it is logically or legally impossible to be an accomplice to a reckless homicide.
Here, we are not concerned so much with a failure to “perceive a substantial and unjustifiable risk” (criminally negligent homicide,
Accomplice liability does not require that the accomplice intend for the principal to act in a reckless manner. Rather, accomplice liability requires only that the accomplice intend to promote or to assist the principal, having knowledge that the principal is engaging in, or is about to engage in, criminal conduct. See
In further support of our conclusion that complicity is consistent with recklessness, we point out that this Court has held that one can be an accomplice to manslaughter, which is also a reckless crime.1 See generally 2 W. LaFave and A. Scott, Substantive Criminal Law § 6.7(e) (1986). Morris v. State, 146 Ala. 66, 41 So. 274 (1906); Ferguson v. State, 141 Ala. 20, 37 So. 448 (1904); Martin v. State, 89 Ala. 115, 8 So. 23 (1890). In Martin, this Court held that two brothers were equally guilty of manslaughter, regardless of which brother fired the fatal shot:
“The jury were not without testimony from which they could draw the inference that the two Martins had a common purpose to set the law at defiance, and to use whatever force might be necessary to accomplish their object; and that each was ready to assist and encourage the other, if assistance and encouragement should become necessary. [This being so], each was accountable for the act of the other, whether such act was previously intended or not, if it grew naturally and proximately out of the unlawful purpose they had in view.”
89 Ala. at 120, 8 So. at 25. We note that the facts of this case are unusual in that one cannot determine who fired the fatal shot. However, we hold that Simmons could legally be found guilty of reckless murder as an accomplice. He was a principal actor in complicity with the reckless conduct of the other shooters on this occasion. He knowingly advanced and participated in reckless behavior (even though we do not know the identity of the person who fired the fatal shot), and that reckless behavior resulted in the death of a three-year-old child who was traveling on a public street where the shooting occurred. In other words, one could conclude from the evidence that Simmons‘s conduct aided and encouraged another who was aware of, and who consciously disregarded, a substantial risk of death. See Martin v. State, supra. Therefore, the Court of Criminal Appeals erred in reversing the conviction on the holding that Simmons could not aid and abet in the commission of reckless murder.
II.
(Simmons‘s Petition—No. 1920442)
Simmons contends that the State presented insufficient evidence to support a conviction of reckless murder. Specifically, he contends that the evidence showed that the shots fired were fired with the intention to kill a specific individual only and were not directed at human life in general. Although this issue was properly raised at trial and before the Court of Criminal Appeals, the Court of Criminal Appeals did not rule on it. However, in the interest of judicial economy and under this Court‘s “inherent power to do full justice,” we will address this issue. See Howell, supra, at 1329.
“Reckless murder” or, as it is sometimes called, “universal malice murder” or “depraved heart murder,” requires the prosecution to prove conduct that manifests an “extreme indifference to human life,” any human life. As noted above, Simmons contends that this section is not applicable to the present situation because, he says, the intended victim was a particular person. We disagree.
The fact that the families of Simmons and Peterson had been involved in an altercation the night before the child was killed is not in dispute. There was testimony that Peterson had fired shots at Simmons and at some of Simmons‘s family before the exchange of gunfire in which the child was killed. However, the evidence was that Simmons, as well as several others, was shooting firearms indiscriminately in the general direction of the car in which the child was riding. This spraying of bullets occurred on a public
As noted in the Commentary to
“Where the actor intentionally or knowingly does an act that is highly likely to cause death to another person, and as a natural and direct result another person is killed, though not the person subjectively intended to be killed or seriously injured (e.g., arson of public building, blowing up commercial airplane, shooting gun indiscriminately, etc.), the actor is guilty of murder under either
§ 13A-6-2(a)(1) because he intended `to cause the death of another person,’ or§ 13A-6-2(a)(2) for recklessly engaging in conduct which creates a grave risk of death and `under circumstances manifesting extreme indifference to human life.‘”
Given the specific facts of this case, it does not matter whether Simmons intended to kill Peterson or some other particular person. Rather, the conduct of the parties involved in the shooting created a grave risk of death and was, under the circumstances, a manifestation of extreme indifference to human life.
In conclusion, we hold that there was sufficient proof that Simmons was a willing actor in this deadly fray, ready to assist and encourage the others involved in the shooting, and under a complicity theory, is accountable for the death of the child.
The judgment of the Court of Criminal Appeals is reversed and the cause is remanded to that court for an order or proceeding consistent with this opinion.
REVERSED AND REMANDED.
MADDOX, HOUSTON, STEAGALL, INGRAM and COOK, JJ., concur.
ALMON, SHORES and KENNEDY, JJ., dissent.
ALMON, Justice (dissenting).
I respectfully dissent from the majority opinion. I would affirm the judgment of the Court of Criminal Appeals, because I agree that it was error for the circuit court to charge the jury on aiding and abetting, although I would limit the holding to the facts of this case. Simmons was tried only under
“(a) A person commits the crime of murder if:
“. . . .
“(2) Under circumstances manifesting extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to a person other than himself, and thereby causes the death of another person; ....”
Our complicity statute,
“A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
“(1) He procures, induces or causes such other person to commit the offense; or
“(2) He aids or abets such other person in committing the offense; ....”
(Emphasis added).
The Court of Criminal Appeals held, essentially, that it is “incompatible within the same charged offense” to say that one intends to promote or assist the commission of reckless conduct. See the definitions of “Intentionally” and “Recklessly” at
The problem arises here because
As I view this case, it appears that the State should have tried Simmons under either
“(a) A person commits the crime of murder if:
“(1) With intent to cause the death of another person, he causes the death of that person or of another person; or
“. . . .
“(3) He commits or attempts to commit arson in the first degree, burglary in the first or second degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree, sodomy in the first degree or any other felony clearly dangerous to human life and, in the course of and in furtherance of the crime that he is committing or attempting to commit, or in immediate flight therefrom, he, or another participant if there be any, causes the death of any person.”
(Emphasis added.) The district attorney stated that he could not prove that “Simmons fired the shot that killed Leonard Rivers.” However, if he could have proved, even by circumstantial evidence, that the fatal shot was fired by Simmons or by one of the persons with him in the truck, Simmons could be found guilty under
Alternatively, if the district attorney could have proved that Simmons or one of his companions fired the shot that killed Rivers, Simmons could be found guilty under
If the State was unable to prove even circumstantially that the shot that killed Rivers came from the truck in which Simmons was riding, I cannot see how Simmons can be found guilty of murder. If the evidence equally supports the inference that Peterson shot Rivers, Simmons cannot be found guilty
I would hold that the evidence in this case does not support an instruction stating that Simmons could be found guilty of murder for aiding and abetting the reckless murder of Rivers; therefore, I would affirm the judgment of the Court of Criminal Appeals.
SHORES, J., concurs.