677 So. 2d 1211
Ala. Crim. App.
1995

Lead Opinion

McMILLAN, Judge.

AFFIRMED. NO OPINION.

All Judges concur except TAYLOR, P. J., who dissents with opinion, and COBB, J., who joins the dissent.



Dissenting Opinion

TAYLOR, Presiding Judge

(dissenting).

I respectfully dissent from the unpublished memorandum in this case.

The appellant, who was charged with and convicted of murder made capital under § 13A-5-40(a)(16) and (a)(18), argues that the court erred in refusing to instruct the jury on reckless murder as a lesser included offense. The majority concludes that this issue was not preserved for appellate review. I do not agree. The record reveals that the court, in response to appellant’s counsel’s request for the charge, specifically stated that reckless murder was not a lesser included offense of capital murder. This issue was specifically preserved for appellate review.

Moreover, in Fox v. State, 659 So.2d 210 (Ala.Cr.App.1994), we held that reckless murder may be a lesser included offense of the capital offense defined in § 13A-5-40(a)(16).