Railey v. StateRailey v. State
Jeff Sessions and Bill Pryor, attys. gen., and LaVette Lyas-Brown, asst. atty. gen., for appellee.
LONG, Judge.
The appellant, Jack Brian Railey, was convicted of manslaughter, a violation of
The state‘s evidence tended to show that the appellant shot and killed his girlfriend, Constance A. McClenny, during an argument. (R. 33-34, 358.) The appellant maintained that the shooting was an accident. He testified that he had taken the clip out of a .25 caliber automatic pistol before the shooting and that he believed the weapon was unloaded and disarmed when he fired it. (R. 349-50.)
On appeal, the appellant contends that the trial court erred by sentencing him pursuant
“First, implicit in the language of
§ 13A-5-6(a)(5) — ‘a firearm or deadly weapon was used or attempted to be used in the commission of the felony’ — is the requirement that the underlying felony for which the defendant is convicted have, as one of its necessary elements, the element of intentional criminal conduct. Therefore, [the defendant‘s] reckless or negligent conduct, which resulted in manslaughter, while sufficient to supply the criminal scienter to support a conviction for a Class C felony, does not require a finding that he intentionally used the firearm to commit the felony, and thus cannot support the application of§ 13A-5-6(a)(5) . In other words, reading§ 13A-5-6 as a whole, we must construe subsection (a)(5) to mean that convictions for those underlying felonies that are committed without the intentional use of a weapon do not fall within the category of convictions that invoke the enhancement provision of this statute.“Second, ‘enhancement,’ as that word is used to describe the effect of
§ 13A-5-6(a)(5) , necessarily means that in addition to the culpability of the offense for which the defendant has been convicted, the defendant‘s conduct is necessarily the result of a higher degree of culpability, because of the jury‘s finding that a ‘firearm or deadly weapon was used or attempted to be used in the commission of the felony.’ Indeed, the use of a deadly weapon to commit the underlying felony is the classic situation intended by the legislature to invoke the enhanced penalty.”
554 So. 2d at 340-41 (emphasis in original; footnote omitted.). See also Ward v. State, 689 So. 2d 218 (Ala.Cr.App.1996); Avery v. State, 603 So. 2d 1123 (Ala.Cr.App.1992).
The appellant was indicted for murder, a violation of
Here, as in McCree, supra,
“the jury returned a verdict of manslaughter. By virtue of that finding that [the defendant] recklessly caused the death of his friend, the jury eliminated the element of [the defendant‘s] intentional use of a firearm as a means to take human life. The culpability of [the defendant] for recklessness was established by the jury‘s verdict. Otherwise, the guilty verdict would have reflected a higher degree of unlawful homicide. Therefore, the trial court was without authority to sentence [the defendant] under an enhancement statute that, by its terms, is invoked only by a degree of culpability higher than that for which [the defendant] had been found guilty.”
McCree, 554 So. 2d at 341 (emphasis in original).
The record establishes that the appellant was convicted of reckless manslaughter; thus, the firearm enhancement provisions of
REMANDED WITH DIRECTIONS.
All Judges concur.
On Return to Remand
LONG, Presiding Judge.
On November 11, 1996, we remanded this case with directions to the trial court to clarify whether it had applied Alabama‘s “firearm enhancement statute,”
AFFIRMED.
All Judges concur.