author: DONALDSON, Judge.

text:
    Robert E. MORRIS v. James Tony GLENN.
    2120857.
    Court of Civil Appeals of Alabama.
    May 30, 2014.

      Robert E. Morris, pro se.
   DONALDSON, Judge.

Robert E. Morris appeals a judgment of the Marion Circuit Court (“the trial court”) dismissing his legal-malpractice claim against his former attorney, James Tony Glenn. Because Morris did not receive notice of Glenn’s motion to dismiss before the entry of the judgment, we reverse the trial court’s judgment and remand the cause to the trial court.

Statement of Facts

On March 7, 2013, Morris, an inmate in the custody of the Alabama Department of Corrections, filed a complaint in the trial court, without counsel, asserting a claim of legal malpractice against Glenn under the Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala.Code 1975. Morris’s claim stems from Glenn’s representation of Morris in a criminal prosecution in Marion County. In his complaint, Morris asserted that he had been convicted of one count of first-degree robbery and had been sentenced to a term of life imprisonment. Morris alleged that Glenn had been appointed to represent him on appeal of the conviction to the Court of Criminal Appeals. Morris alleged that the Court of Criminal Appeals had determined that certain arguments that Morris had attempted to raise in the appeal were waived based on Glenn’s alleged failure to properly comply with the requirements of Rule 28, Ala. R.App. P. Morris alleged that, based on that failure, his conviction was affirmed and that Glenn’s representation of Morris on appeal fell below the applicable standard of care.

The record reflects that Glenn was served with the summons and complaint on March 11, 2013. Thirty-nine days later, on April 19, 2013, Morris filed an application for an entry of default pursuant to Rule 55(a), Ala. R. Civ. P., on the ground that Glenn had not filed an answer or other responsive pleading within 30 days after service of the summons and complaint as required by Rule 12(a), Ala. R. Civ. P. On that same day, April 19, 2013, Glenn made his first appearance in the case by filing a “motion” in opposition to Morris’s application for an entry of default. Glenn also filed a separate motion to dismiss the action pursuant to Rule 12(b)(6), Ala. R. Civ. P. Neither of-Glenn’s motions contained a certificate of service on Morris, and the record provides no indication that Glenn attempted to serve either motion on Morris at any time. Later that same day, the trial court entered an order denying Morris’s motion for an entry of default.

On May 10, 2013, Glenn filed a second motion to dismiss, asserting that the complaint should be dismissed pursuant to the Alabama Prisoner Litigation Reform Act, codified at § 14-15-1 et seq., Ala.Code 1975. Glenn alleged that Morris’s claim was without merit and “absolutely frivolous” and that Morris was “absolutely guilty of the [criminal] charges he was convicted of.” The May 10 motion also did not contain a certifícate of service on Morris,' and there is nothing in the record indicating that Glenn made any attempt to serve the May 10 motion on Morris at any time.

On May 13, 2013, the trial court entered an order granting Glenn’s May 10 motion to dismiss the case, stating, in pertinent part that “the MOTION TO DISMISS PURSUANT TO [THE ALABAMA PRISONER LITIGATION REFORM ACT], filed by defendant James Tony Glenn, is GRANTED.” (Capitalization and emphasis in original.) On May 28, 2013, Morris filed a motion to alter, amend, or vacate the trial court’s judgment in which he asserted, among other things, that he had not been served with Glenn’s May 10 motion in accordance with Rule 5, Ala. R. Civ. P. The trial court denied Morris’s postjudgment motion by order dated June 5, 2013. Morris then filed a timely appeal to this court.

On appeal, Morris contends that, because he never received service of Glenn’s May 10, 2013, motion to dismiss that formed the basis of the trial court’s judgment, the judgment was entered in a manner inconsistent with due process and must therefore be reversed. Under these facts, we agree. In Ex parte Weeks, 611 So.2d 259 (Ala.1992), our supreme court explained:

“Procedural due process, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, § 6, of the Alabama Constitution of 1901, broadly speaking, contemplates the rudimentary requirements of fair play, which include a fair and open hearing before a legally constituted court or other authority, with notice and the opportunity to present evidence and argument, representation by counsel, if desired, and information as to the claims of the opposing party, with reasonable opportunity to controvert them.”

611 So.2d at 261. The right to be heard and to present objections “has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

To satisfy constitutional standards, notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. Notice must also be “of such nature as reasonably to convey the required information,” and “it must afford a reasonable time for those interested to make their appearance.” Id. Whether the notice be “ ‘that an action has commenced or that the moving party has added a new or additional claim for relief ..., the need for notice is the same.’ ” Austin v. Austin, [Ms. 2120102, July 19, 2013] — ,So.3d -, - (Ala.Civ.App. 2013) (quoting Varnes v. Local 91, Glass Bottle Blowers Ass’n of United States & Canada, 674 F.2d 1365, 1368 (11th Cir. 1982))...

Service of written notice is “the classic form of notice” and is “always adequate in any type of proceeding.” Mullane, 339 U.S. at 313. Rule 5(a), Ala. R. Civ. P., provides that “every written motion other than one which may be heard ex parte, and every written notice, ... shall be served upon each of the parties” unless the rules provide otherwise. We note that Rule 5(d), Ala. R. Civ. P., requires a certificate of service to be included on “[a]ll papers after the complaint required to be served upon a party” and that the “certifícate of service shall list the names and addresses, including the e-mail addresses of registered electronic-filing-system users, if known, of all attorneys or pro se parties upon whom the paper'has been served.”

In Woodruff v. City of Tuscaloosa, 101 So.3d 749 (Ala.2012), our supreme court stated:

“[D]ue-process requirements could prevent a trial court from ruling on a motion that had not been properly served in accordance with Rule 5, even though personal jurisdiction over the parties had been established. See, e.g., Neal v. Neal, 856 So.2d 766, 782 (Ala.2002) (stating that a person already made a party to litigation could, ‘on some critical motion or for some critical proceeding within that litigation,’ be deprived of the due process required by the Fourteenth Amendment to the United States Constitution if he or she is not provided with ‘notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing’).”

101 So.3d at 752. Thus, the failure to serve a motion in accordance with Rule 5 might result in a violation of an opposing party’s due-process rights and can render a judgment entered pursuant to the motion void. See Pirtek USA, LLC v. Whitehead, 51 So.3d 291, 295 (Ala.2010) (quoting Orix Fin. Servs., Inc. v. Murphy, 9 So.3d 1241, 1244 (Ala.2008), quoting in turn Ins. Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991)) (“ ‘ “A judgment is void ... if the court rendering it ... acted in a manner inconsistent with due process.” ’ ”).

Our supreme court has recognized that the failure to serve a motion or other paper in compliance with Rule 5(a) will not always result in a due-process violation. See Woodruff, 101 So.3d at 752-53 (holding that the trial court did not violate due process in considering the defendant’s motion to dismiss because the defendant had corrected its error in not serving its motion to dismiss on the plaintiff and because thé plaintiff had received adequate time to consider and respond to the arguments made in the motion). But, in this case, we hold that Morris has been deprived of due process.

The trial court considered Glenn’s May 10, 2013, motion to dismiss without any notice being provided to Morris, and it dismissed the action on the ground alleged in Glenn’s motion without affording Morris an opportunity to respond. Because Glenn’s May 10 motion had not been properly served in accordance with Rule 5 and because the record does not indicate that Morris was provided with notice of Glenn’s motion, principles of due process required the trial court to refrain from ruling on the motion. We conclude that the judgment dismissing the action is void- because it is inconsistent with due process. See Pirtek USA, LLC, supra.

Morris’s claim might lack merit, but the process followed in this case does not permit the claim to be dismissed under the existing circumstances. We, therefore, reverse the trial court’s judgment and remand the cause to the trial court. Because we are reversing the judgment on a procedural issue, we pretermit discussion of the other issues Morris raises on appeal, including whether the Alabama Prisoner Litigation Reform Act, the basis of Glenn’s motion to dismiss, applies to Morris’s claim.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.

      . Rule 28(a)(10) provides that an appellate brief must include “[a]n argument containing the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.” If an argument in an appellate brief does not contain a discussion of the facts and the relevant legal authority, as required by Rule 28(a), then the appellate court will deem that argument to be waived. See White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008); see also Franklin v. State, 23 So.3d 694, 702 (Ala. Crim.App.2008); Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996).

      . Act No. 2013-115, Ala. Acts 2013, the Alabama Prisoner Litigation Reform Act, had an effective date of April 24, 2013. The act "appl[ies] to all pro se civil actions for money damages relating to terms and conditions of confinement brought under the laws of this state, or for injunctive, declaratory, or mandamus relief, brought by prisoners incarcerated in any state correctional facility.” § 14-15-2, Ala.Code 1975 (emphasis added). Because this appeal is adjudicated on procedural-due-process grounds, we do not address the question pertaining to application of the Alabama Prisoner Litigation Reform Act to the present case.

      . Glenn has not filed a brief on appeal.


source: Caselaw Access Project

license: Public Domain

text:
    C.M.B. v. C.W.
    2130134.
    Court of Civil Appeals of Alabama.
    May 30, 2014.
    Thomas Logan Davis, Birmingham, for appellant. .
    Frederic L. Washington, Birmingham, for appellee.
   DONALDSON, Judge.

C.M.B. appeals from a judgment adjudicating him to be the legal, biological father of A.T.W. (“the child”) and ordering him to pay child support to C.W. (“the mother”). The child was born in February 2001. The ■ mother filed a complaint against C.M.B. in the Jefferson Juvenile Court (“the trial court”), seeking a determination of paternity and an award of child support, on November 7, 2011. C.M.B. represented himself in the trial court. The trial court ordered genetic testing, and it held a trial on October 2, 2013. The trial court adjudicated C.M.B. to be the father of the child, and it ordered him to pay child support in the amount of $577 per month, half of all unreimbursed medical expenses, and $13,271 in retroactive child support payable at the rate of $100 per month. C.M.B. then retained counsel and filed a motion to alter, amend, or vacate the judgment, arguing that the trial court lacked jurisdiction to establish paternity because the mother had been married to a man other than C.M.B. at the time the child was born, that the man is the child’s presumptive father and is now deceased, and that there was no evidence indicating that the presumptive father had ever disclaimed paternity. See § 26-17-607(a), Ala.Code 1975 (“[A] presumed father may bring an action to disprove paternity at any time. If the presumed father persists in his status as the legal father of a child, neither the mother nor any other individual may maintain an action to disprove paternity.”). C.M.B.’s motion was denied by operation of law, and C.M.B. filed this timely appeal.

C.M.B. makes three arguments on appeal: 1) that the trial court erred by proceeding with the paternity action after being informed that there was a presumptive father, 2) that the trial court erred by failing to add the estate of the presumptive father as an indispensable party, and 3) that the trial court erred by failing to conduct a hearing to determine if the presumptive father persisted in his status as the legal father of the child. Although some aspects of the issues raised by C.M.B. on appeal could be addressed by reviewing the pleadings, it is apparent from the briefs to this court that the parties disagree as to certain assertions made by C.M.B. and that there might be disputed issues of material fact including issues involving the purported presumptive father. Although the trial transcript is not part of the record on appeal, the trial court certified the record as adequate for appeal. See Rule 28(A)(1)(a), Ala. R. Juv. P. C.M.B. asked for the record to be supplemented with the trial transcript before submitting his appellate brief, but he then advised this court in his brief that a transcript was not available.

Based on the issues presented and the briefs submitted by the parties, we cannot conclude that the record is adequate for appellate review. See M.V.N. v. D.L.C., 940 So.2d 1033, 1034 (Ala.Civ.App.2006) (“The juvenile court certified the record as adequate in compliance with Rule 28(A)(1)(a), Ala. R. Juv. P. However, no transcript of the trial was produced. The juvenile court’s certification notwithstanding, this court does not have an adequate record to review.”). C.M.B.’s appeal should have been brought in the Jefferson Circuit Court for a trial de novo. Rule 28(B), Ala. R. Juv. P. “Rule 28(D), Ala. R. Juv. P., permits this court to transfer an appeal improperly brought in this court to the circuit court for review.” M.V.N., 940 So.2d at 1034. Accordingly, we transfer this appeal to the Jefferson Circuit Court for a trial de novo.

APPEAL TRANSFERRED.

THOMPSON, P.J., and PITTMAN and MOORE, JJ., concur.

THOMAS, J., concurs in the result, without writing.


author: MOORE, Judge.

text:
    Ex parte ALABAMA DEPARTMENT OF HUMAN RESOURCES. (In re The matter of M.L.K., a minor child). Ex parte Madison County Department of Human Resources. (In re The matter of M.L.K., a minor child).
    2120852 and 2130049.
    Court of Civil Appeals of Alabama.
    May 30, 2014.

      Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for Madison County Department of Human Resources and Alabama Department of Human Resources.
    J. Jeffrey Rich, Madison County atty., Huntsville, for Judge Alison Strickland Austin, as respondent.
   MOORE, Judge.

In appeal no. 2120852, the Alabama Department of Human Resources (“the State DHR”) seeks review of separate permanency orders entered by the Madison Juvenile Court (“the juvenile court”) regarding M.L.K. (“the child”). In appeal no. 2130049, the Madison County Department of Human Resources (“the Madison County DHR”) seeks review of a subsequent permanency order entered by the juvenile court regarding the child.

Procedural History

On November 28, 2012,, the Madison County DHR filed a petition to terminate the parental rights of the child’s parents; that case was assigned case no. JU-11-1893.02. After a hearing, the juvenile court, on March 5, 2013, entered a judgment in case no. JU-11-1893.02 terminating the parental rights of the child’s parents, placing the child in the permanent custody of the State DHR, stating that the State DHR “may make plans for the child’s adoption, but shall not consent to an adoption pending further order of the Court,” and setting the case for “a permanency hearing” in April 2013.

After the April 2013 hearing, the juvenile court, in case no. JU-11-1893.01 (the original dependency action concerning the child), entered an order on May 30, 2013, stating that the legal custody of the child would “remain with [the Madison County DHR]”; rejecting the Madison County DHR’s permanency plan and concurrent permanency plan; stating that the permanency plan “is another court approved planned permanent living arrangement (permanent foster care plan)”; stating that the concurrent permanency plan is adoption by the current foster parent; stating that the Madison County DHR could not remove the child from her current foster home without prior notification to the juvenile court; and setting the case for a review hearing.

On June 13, 2013, the Madison County DHR moved to alter, amend, or vacate the May 30, 2013, order. After a hearing, the juvenile court, on June 25, 2013, rendered an order, in case no. JU-11-1893.02, denying the Madison County DHR’s post-judgment motion and stating, in pertinent part:

“The Court clearly intended from the record for the dispositional hearing.and resulting order to occur after the hearing on April 18, 2013. [The Madison County DHR] on two occasions during the termination hearing requested that its termination petition be granted in all aspects, which, as reflected in the February 22, 2013, [Madison County DHR] court report, included a request that the child be placed in the permanent custody of [the State DHR] for adoptive planning. The Court specifically denied said request on both occasions as to the disposition[;] thus the Court clearly did not intend on the inclusion of paragraph B in the March [5], 2013, Order. WHEREFORE, pursuant to Rule 60(a), Alabama Rules of Civil Procedure, this Court hereby corrects the clerical mistake made in its Order, dated March [5], 2013, in that paragraph B should state as follows: ‘The child is placed in the temporary legal custody of the Madison County Department of Human Resources.’ See Mickle v. Mickle, 334 So.2d 900 ... (Ala.1976).”

On July 9, 2013, the State DHR petitioned this court for a writ of mandamus regarding the May 30, 2013, order entered, and the June 25, 2013, order rendered, by the juvenile court; that petition was docketed as appeal no. 2120852. On September 5, 2013, this court notified the parties that it would treat that petition as an appeal.

On September 11, 2013, the juvenile court entered an order in case no. JU-11-1893.01, maintaining legal custody of the child with the Madison County DHR; denying the request of the Madison County DHR to place the child in the permanent custody of the State DHR; denying the proposed permanency plan of adoption with no identified resource; stating that the permanency plan is another court-approved planned permanent-living arrange-menVpermanent foster care and that the concurrent plan is adoption by the child’s current foster parent; stating that the Madison County DHR is directed to place the child in a licensed foster home or other suitable facility; stating that the child is not to be removed from her current foster home without prior notification to the juvenile court and the child’s guardian ad litem and/or a hearing; and setting the case for a review hearing. On September 24, 2013, the Madison County DHR filed a post-judgment motion. On September 26, 2013, the juvenile court entered, in case no. JU-11-1893.01, an order denying the post-judgment motion. On October 10, 2013, the Madison County DHR filed its notice of appeal; that appeal was docketed as appeal no. 2130049. This court subsequently granted a motion filed by the State DHR and the Madison County DHR to consolidate the appeals.

Having determined that the juvenile court had failed to properly enter the June 25, 2013, order into the State Judicial Information System (“SJIS”) in either case no. JU-11-1893.01 or case no. JU-11-1893.02 and that the juvenile court had incorrectly entered the May 30, 2013, September 11, 2013, and September 26, 2013, orders in the previous dependency action, i.e., case no. JU-11-1893.01, we reinvested the juvenile court with jurisdiction to properly enter all the aforementioned orders in case no. JU-11-1893.02. See Rule 58(c), Ala. R. Civ. P., and Rule 1(A), Ala. R. Juv. P. On May 1, 2014, the juvenile court, in compliance with Rule 58(c), entered the May 30, 2013, September 11, 2013, and September 26,2013, orders in case no. JU-11-1893.02; it entered the June 25, 2013; order in case no. JU-11-1893.02 on May 6, 2014.

Discussion

On appeal, the State DHR argues that the juvenile court erred in modifying its March 5, 2013, order awarding the State DHR permanent custody of the child without a petition for modification having been filed or an evidentiary hearing having been held. We note, however, that, in its June 25, 2013, order, the juvenile court indicated that, pursuant to Rule 60(a), Ala. R. Civ. P., it was correcting a clerical error in its March 5, 2013, order so as to make the order comport with the intentions of the juvenile court as reflected in the record of the termination-of-parental-rights hearing. The State DHR has failed to cite any law indicating that the juvenile court did not comply with the requirements for Rule 60(a). Therefore, we cannot hold the juvenile court in error on this point. See Rule 28(a)(10), Ala. RApp. P.

The State DHR also argues that the juvenile court erred in awarding it only “temporary legal custody” in the orders entered subsequent to the March 5, 2013, judgment. Section 12-15-320(b), Ala. Code 1975, provides:

“If the juvenile court determines that the parents of a child are unwilling or unable to act as parents and terminates their parental rights, it may do the following:
“(1) Transfer or continue the permanent legal custody of the child to the Department of Human Resources or to any public or private licensed child-placing agency able and willing to assume the care and maintenance of the child....
“(2) Transfer or continue the permanent legal custody of the child to the petitioner who, after study by the Department of Human Resources, is found to be able to properly receive and care for the child.”

(Emphasis added.) Based on that statutory language, once the parental rights of a child’s parents are terminated, a juvenile court may either place the child in the permanent legal custody of “the Department of Human Resources,” another “public or private licensed child-placing agency,” or the person who petitioned for the termination of parental rights and who is approved by “the Department of Human Resources.” The juvenile court could not award the State DHR or the Madison County DHR only temporary legal custody of the child. See State Dep’t of Human Res. v. Thomas, 554 So.2d 1063, 1064 (Ala. Civ.App.1989) (finding that the judgment in that ease was inconsistent with former § 26-18-8, Ala.Code 1975, because it awarded the Russell County Department of Human Resources only temporary custody and remanding the case for the juvenile court to resolve the inconsistency). Thus, the juvenile court committed reversible error in awarding only temporary, as opposed to permanent, legal custody of the child to either the Madison County DHR or the State DHR.

The State DHR next argues that, once it had obtained permanent legal custody of the child pursuant to the March 5, 2013, termination judgment, the juvenile court could not usurp its authority to arrange for the adoption of the child. Section 12-15-320(b)(1) specifically provides, in pertinent part, that

“[a]n order of the juvenile court which terminates parental rights and awards permanent legal custody to the Department of Human Resources or to a licensed child-placing agency shall mean that the Department of Human Resources or the licensed child-placing agency shall have authority to make permanent plans for the child, including the authority to place for adoption and consent to adoption.”

By using the imperative term “shall,” see Ex parte Prudential Insurance Co. of America, 721 So.2d 1135, 1138 (Ala.1998) (indicating that the word “shall” is clear and unambiguous and is imperative and mandatory), the legislature, in § 12-15-320(b)(1), intended that, in every case in which it acquires permanent legal custody of a child following the termination of parental rights, “the Department of Human Resources” inherently acquires the authority to develop a permanency plan for adoption of the child and to place the child for adoption, regardless of whether the judgment is silent on the subject and even if the judgment provides otherwise.

Section 12-15-321, Ala.Code 1975, provides:

“Where the juvenile court has terminated the parental rights and has placed legal custody of the child with the Department of Human Resources or with a public or private licensed child-placing agency, the juvenile court, at least annually, shall review the circumstances of the child to determine what efforts have been made to achieve permanency for the child.”

Section 12-15-321 authorizes a juvenile court to hold periodic permanency hearings regarding a child in the permanent legal custody of “the Department of Human Resources” following the termination of parental rights. Nothing in § 12-15-321, however, bestows upon a juvenile court the power to determine the permanency plan for the child, which power it does have under § 12-15-315, Ala.Code 1975, before parental rights are terminated. To the contrary, § 12-15-321 specifically provides that a juvenile court may only “review the circumstances of the child to determine what efforts have been made to achieve permanency for the child.” In other words, the purpose of a permanency hearing under § 12-15-321 is not to determine the appropriate permanent placement of the child, but to ensure that “the Department of Human Resources” is using reasonable efforts to achieve the permanency plan it has formulated for the child under the authority granted to it by § 12-15-320(b).

In the present case, the juvenile court purported to reserve unto itself the power to determine the permanency plan for the child after terminating the parental rights of the child’s parents; however, no statute grants the juvenile court that authority. Thus, in rejecting the State DHR’s permanency plan and substituting its own permanency plan, the juvenile court exceeded its statutory authority. For that reason, the orders entered by the juvenile court subsequent to the March 5, 2013, judgment are due to be reversed.

2120852 — REVERSED AND REMANDED WITH INSTRUCTIONS.

2130049 — REVERSED AND ' REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN, THOMAS, and DONALDSON, JJ., concur.

      . The original dependency action concerning the child had been assigned case no. JU-11-1893.01.

      . On June 11, 2013, the Madison County DHR filed a notice of appeal from the May 30, 2013, order; the Madison County DHR subsequently requested dismissal of that appeal, and this court granted that request and dismissed the appeal. See Madison Cnty. Dep’t of Human Res. v. O.D.F.B. (No. 2120782, June 17, 2013),-So.3d-(Ala. Civ.App.2013) (table).

      . The State DHR has filed a consolidated brief in appeal nos. 2120852 and 2130049 on behalf of the State DHR and the Madison County DHR. We therefore refer to "the State DHR” in addressing the issues on appeal.

      . Technically, the juvenile court did not award the State DHR temporary legal custody of the child; instead, it awarded the Madison County DHR temporary legal custody. However, .we take judicial notice that the various county departments of human resources act as agents of the State DHR and that, therefore, an award of custody to a particular department of human resources constitutes an award of custody to that department as the agent of the State DHR. See Ala.Code 1975, § 38-2-6.

      . Section 12— 15 — 315(a), Ala.Code 1975, provides that a juvenile court must hold periodic permanency hearings in certain cases and that the "purpose of the permanency hearing shall be to determine the permanency plan for the child....” (Emphasis added.)


author: KELLUM, Judge. KELLUM, Judge. ■

text:
    Everett Bernard MORTON v. STATE of Alabama.
    CR-10-1579.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2013.
    Opinion on Second Application for Rehearing Nov. 8, 2013.
    Certiorari Denied April 11, 2014 Alabama Supreme Court 1130224.

      Aaron Gartlan and David Kenneth Hogg, Dothan, for appellant.
    Luther Strange, atty. gen., and William D. Dill, asst. atty. gen., for appellee.
   On Application for Rehearing

KELLUM, Judge.

The opinion issued on November 2, 2012, is withdrawn and the following opinion is substituted therefor.

The appellant, Everett Bernard Morton, was convicted of one count of murder made capital because it was committed by or through the use of a deadly weapon while the victim was inside a vehicle, a violation § 13A-5-40(a)(17), Ala.Code 1975, and of one count of attempted murder, a violation of § 13A-6-2 and § 13A-4-2, Ala.Code 1975. The jury unanimously recommended that Morton be sentenced to life imprisonment without the possibility of parole for his capital-murder conviction. The trial court followed the jury’s recommendation and sentenced Morton to life imprisonment without the possibility of parole for the capital-murder conviction. The trial court sentenced Morton to 10 years’ imprisonment for the attempted-murder conviction.

The evidence adduced at trial indicated the following. During the evening hours of April 19, 2006, Morton telephoned Patrick Dixon and asked to purchase $10 worth of marijuana from him. Dixon agreed to sell Morton the marijuana and he and Tyrance Byrd drove in Dixon’s green Ford Thunderbird automobile to Morton’s aunt’s house on Hamilton Street in Dothan. When they arrived, Dixon and Byrd were told by then 12-year-old Kahe-era (“Kiki”) Rich to drive around the corner to Fifth Avenue, which they did. At that time, Morton approached Dixon’s automobile and purchased the marijuana from Dixon, giving Dixon two five-dollar bills. Just after the purchase, two armed men wearing bandanas on their faces, who were later identified as Michael James and Marcus Rivers, came out of nearby bushes and approached the vehicle, pointing their weapons at Dixon and Byrd and demanding that Dixon and Byrd hand over all of their money. James and Rivers then began shooting at Dixon’s automobile. Dixon and Byrd were able to speed away from the shooting, but both suffered gunshot wounds, and Dixon ultimately died as a result of his wounds. Testimony indicated that the robbery of Dixon and Byrd was planned by Morton, who asked James and Rivers to help him, so that he could obtain money to pay a debt.

Michael James testified that he lived on Fourth Avenue near Hamilton Street in Dothan, and that he knew Morton, whose aunt lived on Hamilton Street, and Rivers, as well as Dixon, but that he did not know Byrd. According to James, Dixon often sold marijuana in the neighborhood around Hamilton Street. James said that he had purchased marijuana from Dixon on previous occasions. On April 19, 2006, James said, he, Morton, and Rivers were together in the neighborhood. They had been smoking marijuana. Morton told James and Rivers that “he wanted a lick, need a lick,” meaning that Morton wanted to commit a robbery. (R. 1037.) According to James, Morton said that he owed money to someone and that he wanted to rob Dixon. James told Morton that Dixon “was the wrong one” (R. 1043) to rob because “[e]v-erybody knew him.” (R. 1044.) At first, James told Morton that he did not want to participate in the robbery; however, James subsequently changed his mind and agreed to help Morton rob Dixon. Rivers agreed to help as well. James and Rivers were both armed with black nine-millimeter pistols. James testified, however, that he told Morton that “wasn’t nobody supposed to get hurt” during the robbery and that there would not be any shooting. (R. 1069.) Morton telephoned Dixon to have him come over to the neighborhood so that they could commit the robbery. Morton borrowed $10 from James to purchase marijuana from Dixon in order “to make it look legit.” (R. 1051.) James said that he, Rivers, and Morton agreed that Morton would use body language to signal James and Rivers to begin the robbery.

James testified that he and Rivers hid in the bushes across the street from where the robbery subsequently occurred. Both were wearing black clothing and had bandanas over their faces. James testified that he wore a blue bandana, which signified that he was a member of a gang called the “CRIPS.” (R. 1048.) James could not recall what color bandana Rivers wore. James stated that, from his vantage point in the bushes, he saw Dixon drive his automobile onto Fifth Avenue and that he then saw Morton standing by the automobile. According to James, he saw the overhead light inside the car turn on, saw Dixon “fumbling ... getting the drugs,” and then saw the exchange take place. (R. 1052.) James said that he then “speculated” that he and Rivers were supposed to begin the robbery and they came out of the bushes and approached Dixon’s vehicle. (R. 1053.) Rivers went to the driver’s side of the vehicle and James went to the passenger side. James said that he told the occupants in the vehicle “to put their hands on the roof and don’t move.” (R. 1055.) Rivers also said “don’t move.” (R. 1055.) James then said “don’t test me, brother, just give it up, give it up.” (R. 1073.) James said that when he and Rivers approached the car, Morton backed away. James testified that he was the first to shoot at the vehicle, but that he missed the vehicle and hit the passenger, Tyrance Byrd. James then fired toward Byrd “four or five” more times and Rivers fired toward the driver, Dixon, several times. (R. 1059.) James said that he and Rivers continued firing at the vehicle as it sped away.

James testified that after the shooting he ran home and hid his pistol “in the backyard up under a shed.” (R. 1065.) That pistol was never recovered by the police. Early the next morning, James was arrested by police and taken to the police station. James said that he subsequently gave three statements to the police regarding the shooting. In his first statement, James told the police that he and Rivers were walking home from a friend’s house when they saw Dixon’s car on the side of the road and then saw somebody rob Dixon. In other words, James told police that he and Rivers were only witnesses to the robbery and not the perpetrators. After the police “started pressuring” him, James said, he gave a second statement, in which he said that he and Rivers were walking down the road when they saw Dixon’s car pull to the side of the road and he and Rivers then approached the car and robbed Dixon. (R. 1078.) In neither of his first two statements did James mention Morton’s involvement. However, according to James, he lied to the police in his first two statements because he “was scared and trying to save [himjself.” (R. 1067.) James said that it was only in his third statement that he told the police the truth. In his third statement, James stated essentially the same facts as he testified to at trial. He said that it was Morton’s idea to commit the robbery. He also said that there was no plan for anyone to get hurt and that the shooting occurred suddenly, when Byrd reached for a gun. However, unlike his testimony at trial, in his third statement, James said that the first time he fired at the vehicle he fired two warning shots, neither of which hit anyone.

James testified that he, like Morton, had been charged with capital murder and attempted murder, but that the district attorney offered him a plea bargain in exchange for testimony against Morton and Rivers. James said that he pleaded guilty to intentional murder as a lesser-included offense of the capital-murder charge and to attempted murder and that he received two concurrent 30-year sentences. James said that, while in prison serving his sentence, he gave a recorded statement to Morton’s defense attorneys. In the statement, James said that Morton was not involved in the robbery and shooting. However, James testified that he had lied to Morton’s defense attorneys. At some point after he gave that recorded statement, James said, he asked a different attorney than the attorney who had represented him on the plea agreement to review his case and, when the district attorney spoke to him about a week before Morton’s trial, James told the district attorney that he believed he could get a better sentence and indicated that he was not going to testify against Morton. According to James, the district attorney then told him that he had violated the terms of his plea agreement and that his guilty pleas were void. The district attorney then indicted James for capital murder during a robbery. James subsequently spoke with the attorney who had represented him on the plea agreement and decided to testify against Morton as required by his plea agreement. James said that his testimony at trial was the truth.

Elishous Townsend, who lived on Hamilton Street two houses away from Morton’s aunt’s house, testified that he knew Morton and James, but that he did not personally know Rivers, although he had heard of Rivers. Townsend said that he knew that Morton smoked marijuana and that he had previously seen Morton purchase marijuana on Hamilton Street, including many purchases from Dixon. Townsend stated, however, that he never saw Morton purchase marijuana near his aunt’s house;. the purchases were always made on another part of the street. On the night of April • 19, 2006, Townsend said, Morton and James were in his front yard and he heard them talking about robbing someone, although neither Morton nor James identified their potential victim. Townsend admitted, however, that in his statement to police, he had said that he had heard James tell Morton that James was “going to rob this fool,” not that James and Morton were both participating in the discussion of a robbery as he testified to at trial. (R. 566.) Later that night, when Townsend was on his front porch with friends drinking and smoking marijuana, he saw Dixon stop in front of Morton’s aunt’s ■house in his vehicle. A young girl, who Townsend estimated to be about 15 years old, approached the car and Townsend saw her point. Townsend testified that Dixon then drove the car around the corner onto Fifth Avenue, at which point Townsend lost sight of the car. Approximately 30 minutes later, Townsend said, he heard about 15 or 16 gunshots. According to Townsend, shortly after the gunshots, Morton, James, and Rivers came running toward his house. Townsend refused to let them inside his house and told them to “[r]un on up the damn street.” (R. 550.) Townsend said that Morton appeared “spooked” (R. 556) and “hyper, like [his] adrenaline was up.” (R. 550.) Morton, James, and Rivers continued running, and Townsend eventually lost sight of them. Later that night, Townsend again heard gunshots. He said that “[t]hey shot in Morton’s aunt’s house,” but he did not specifically identify who “they” were. (R. 552.) Townsend admitted that when Morton’s attorneys attempted to speak with him, he refused to talk to them. He also said that, after the shooting, he became ' afraid for his safety and he moved. Townsend admitted that he and his family were paid by the District Attorney’s Office for him to testify; specifically, the district attorney’s office paid his family for the gas and food necessary for them to travel to Townsend’s location, pick him up, and transport him to the trial, and it paid both him and his family for wages they lost as a result of taking off work for Townsend to testify. Townsend stated, however, that he did not change his testimony in order to get money.

Kiki Rich, who was 12 years old at the time of the crime and 17 years old at the time of trial, testified that on the night of April 19, 2006, she and two of her younger brothers snuck out of their house to walk to a nearby convenience store to buy “[j]unk food.” (R. 652.) On their way back home, Kiki said, she saw Morton, who she knew, on Hamilton Street. Morton asked her to tell the people in a green automobile parked on the street in front of Morton’s aunt’s house “to pull around the corner.” (R. 657.) Kiki stated that she had seen the green automobile in the neighborhood before, including earlier that day, although she did not know to whom it belonged. Kiki walked to the green automobile and told the two black males in the vehicle to drive around the corner. According to Kiki, she saw the vehicle drive around the corner and stop, at which point she saw Morton approach the driver’s side of the vehicle, place his hands on top of the car, lean over, and speak with the driver. According to Kiki, she then saw Morton “thr[ow] his fingers up” (R. 668), and two black men dressed in black clothing with bandanas on their faces and guns in their hands came out of the bushes, approached the vehicle, and said “[g]ive it. up.” (R. 674.) Kiki described Morton’s hand motion as a “setup.” (R. 670.) However, Kiki testified that she never saw Morton with a gun the night of the shootings and that Morton did not say anything when the two men came out of the bushes with guns. Kiki testified that when the two men with guns approached the car, Morton moved away from the car, and the two men with guns started shooting at the car. Kiki said the car started moving away, but the two men kept shooting at it as it proceeded down the street. When the two men stopped shooting, Kiki said, they ran away. Kiki did not see Morton with them at that time. Kiki stated that she and her two brothers then ran home.

Later that evening, Kiki said, she again left her house and she approached a police officer at the scene of the shooting and told him that she had witnessed the shooting. Specifically, Kiki told the officer that one of the shooters was black and that the second shooter was white. Kiki testified that she had lied to police about the race of the shooters because she was scared. Kiki said that when she first, spoke with the police officer after the shooting and told him that she had been a witness, she did not mention Morton’s name and did not tell him that Morton had given the shooters a signal just before the shooting. Later, when officers came to her house, Kiki said, she lied to the police and told them that it was not her who had spoken to the officer earlier, that it had been someone else. The following day, Kiki said, after talking with her mother, her mother took her to the police department where she gave a statement to police. Kiki testified that the statement she gave at the police department was the truth. Kiki admitted that she had been charged as a juvenile for obstructing governmental operations in relation to her and her mother’s initial refusal to speak to the police the night of the crime, but she said that the district attorney’s office did not make any promises to her in exchange for her testimony at trial. Kiki admitted that in March 2006, a month before the shooting, she had snuck out of the house and gotten caught and that she then made a report to police that she had been raped at gunpoint. Kiki said that she had gotten pregnant and had a child as a result of the rape.

Tracy Rich, Kiki’s mother, testified that she, her husband, and her five children had moved to Lafayette Street, a block away from Hamilton Street, a little over a month before the shooting. Rich said that in the short time she lived in the area, she saw people fighting and selling drugs and sometimes heard gunshots. Rich said that she knew Morton because, sometime before the shooting, she had seen him trying to talk to her daughter, Kiki, and she had told Morton, who was much older than Kiki, to stay away from her daughter. On the evening of April 19, 2006, Rich said, she was lying in bed when she heard gunshots in the neighborhood. Rich testified that when the shots first started, she “went to see if everybody was in the house” and that all of her children, including Kiki, were in the house at that time. (R. 640.) Shortly after hearing the shots, Rich said, police officers knocked on her front door and she told them that Kiki had been in the house with her when she heard the gunshots and could not have witnessed the shooting. Rich spoke to the officers again later that evening and told them that Kiki “didn’t know nothing about it and she was not no snitch and she didn’t know nothing.” (R. 614.) Rich admitted that she told Kiki not to say anything to the police officers. She said she did this for the safety of her daughter and her family. However, after speaking with Kiki that night and being told by Kiki that Kiki had, in fact, snuck out of the house and witnessed the crime, she telephoned the police and informed them that Kiki would tell them what she had seen. After Kiki spoke with police, Rich said, she began receiving threats. According to Rich, she kept Kiki out of school for two weeks as a result of those threats and subsequently moved, twice, in an attempt to keep her family safe.

Tyrance Byrd testified that in 2006 he was living in Texas, but came back to Dothan a couple days before the shooting. Byrd said that he did not know Morton at all and that he did not personally know James or Rivers, although he, James, and Rivers had “all went to alternative school when [they were] younger.” (R. 958.) On April 19, 2006, Byrd met with Dixon, a friend with whom he often sold marijuana. Byrd said that neither he nor Dixon were armed with weapons that day. According to Byrd, Dixon received a telephone call that evening, after which Dixon told'Byrd that they were going to sell a “dime sack” of marijuana to someone. (R. 960.) Byrd said that he and Dixon had marijuana and approximately $500 in cash in Dixon’s vehicle at the time. Dixon then drove to a residential neighborhood and stopped in front of a house. Byrd testified that a young girl approached the vehicle and told Dixon and Byrd that “my auntie don’t want this type of business in front of her house” and then told them to drive around the corner. (R. 966.) Dixon complied with the request and drove around the córner, at which point Morton approached the vehicle. Dixon handed Morton a sack of marijuana and Morton paid Dixon. Byrd said that, after the exchange, Morton stood next to the car but didn’t say anything, like he was “stalling.” (R. 968.) However, Byrd said that Morton held the marijuana in his hands and that he never saw Morton do anything else with his hands.

At that point, Byrd said, two black males dressed in dark clothing, wearing blue rags over their faces, and carrying silver guns approached the vehicle. One of the men said “[g]ive it up.” (R. 972.) According to Byrd, Dixon hit the gas pedal, but the vehicle was in park and went nowhere. Byrd said that one of the men then looked at him and said “don’t make me do this,” to which Byrd responded: “I ain’t got nothing, bro, I ain’t got nothing.” (R. 975.) Byrd said that he never heard Morton say anything nor did he see Morton run away. Byrd said that Dixon then reached in his pocket and pulled out money, but that he did not see what happened to the money. According to Byrd, Dixon then put the vehicle in drive and started driving away, at which point the two men began shooting at the car. Byrd and Dixon both ducked down in the car as they drove away. Byrd testified that he told Dixon that he had been “hit” and that he then saw blood on Dixon’s shirt. (R. 986.) Dixon then said that he could not breathe and he started making a “choking sound.” (R. 987.) Eventually, Dixon passed out and Byrd grabbed the steering wheel and swerved the car to avoid hitting a building. The car eventually came to a stop near a cemetery a few blocks away from the where the shooting had occurred. Byrd telephoned emergency 911 on a cellular telephone and an ambulance and police came to the scene. Byrd spoke with the police and told them about the shooting. Byrd, however, did not tell the police at that time that he and Dixon had been selling marijuana at the time of the shooting. Byrd was transported to the hospital where he underwent surgery.

On cross-examination, Byrd admitted that he had, in the past, transported drugs from Texas to Alabama to sell. However, he said that on this trip to Alabama he did not bring any drugs. According to Byrd, Dixon bought him a bus ticket to come to Alabama because Byrd and his girlfriend in Texas had ended their relationship. Byrd also admitted that he was never charged for selling marijuana the night of the shooting.

Charles Jackie Carpenter, Jr., a general surgeon who was working at the Southeast Alabama Medical Center on the night of April 19, 2006, testified that he performed surgery on Byrd to remove bullet fragments that had penetrated his leg. Dr. Carpenter said the fragments had “gone through the bone just below his knee” and had damaged blood vessels and nerves in Byrd’s leg. (R. 730.) According to Dr. Carpenter, the damage to Byrd’s leg most likely would have required amputation of the leg if it had not been repaired within a few hours of the shooting. Dr. Carpenter stated that he gave the bullet fragments to police.

Alfredo Paredes, a state medical examiner, testified that he performed the autopsy on Dixon. Dixon had been shot four times. Specifically, Dr. Paredes stated that Dixon had two entrance wounds on the back of the left shoulder which came from a single bullet that had “split” into two pieces — the metal jacket and the lead core — before it struck Dixon. (R. 885.) Dr. Paredes testified that the jacket fractured two ribs and that the lead core went through the lung, hit the pulmonary artery close to the heart which caused extensive internal bleeding, and came to rest in the back side of the sternum bone, breaking that bone. Other wounds were to a finger of Dixon’s right hand which fractured the bone, to the lower part of his right leg, and to the inner aspect of his upper left arm. The wounds to his finger, arm, and leg were both entrance and exit wounds, thus indicating that the bullets passed through those appendages. Additionally, Dr. Pa-redes said, all of Dixon’s wounds had hemorrhaging, indicating that Dixon was alive when he received those wounds. Dr. Paredes concluded that the cause of Dixon’s death was multiple gunshot wounds.

Frank Meredith, an investigator with the Dothan Police Department, testified that on April 19, 2006, he was called to the scene of the shooting on Fifth Avenue. Several other Dothan police officers were present at the scene when he arrived. Inv. Meredith said that he and Ferrill Gill, another investigator with the Dothan Police Department, examined the scene and looked for evidence. According to Inv. Meredith, he found 14 nine-millimeter spent bullet casings and shattered glass in the street where the shooting had occurred. The spent bullet casings were found between approximately 30 feet and 80 feet from the corner of the intersection of Fifth Avenue and Hamilton Street. Additionally, Inv. Meredith testified that on May 3, 2006, he went to the Alabama Department of Forensic Sciences (“DFS”) laboratory in Dothan and viewed the Ford Thunderbird automobile that Dixon and Byrd had been in when they were shot. The vehicle had several holes, including one on the passenger side, and the back driver’s side windshield had been shattered.

David Jay, captain of the Investigation Division of the Dothan Police Department, testified that there were three scenes associated with the shooting — the corner of Fifth Avenue and Hamilton Street where the actual shooting took place, the corner of Plant Street and Main Street near a cemetery where Dixon’s vehicle ultimately stopped after the shooting, and the medical center where Dixon and Byrd were taken after the shooting. Cpt. Jay went to all three scenes during the evening of April 19, 2006. At the cemetery, Cpt. Jay said, he saw a large amount of blood in both the passenger and driver’s seats of Dixon’s vehicle. Additionally, the vehicle had several bullet holes and its windows had been shattered. Cpt. Jay testified that by approximately 5:00 a.m. the morning after the shooting, the police had enough information to go to James’s house and arrest James. The record indicates that Rivers was arrested around the same time. Cpt. Jay also testified that he recovered two weapons from a storage building on Zenith Road, a nine millimeter pistol and a .380 caliber pistol. Mattie Rivers, Rivers’s mother and owner of the shed, gave him permission to search the storage shed, and Marcus Rivers was present at the time of the search.

Katherine Reichert, director of the Montgomery laboratory of the DFS and a firearms and tool marks examiner, testified that she received two bullet fragments that had been removed from Dixon’s body, two bullet fragments that had been removed from Byrd’s leg, several spent bullet casings found at the scene of the shooting, two weapons, and several unfired nine-millimeter bullets. Reichert identified State’s Exhibit 1-A as a nine-millimeter Hi-Point brand semi-automatic pistol and State’s Exhibit 1-B as a Bryco Arms brand .380 caliber pistol. These were the pistols recovered by Cpt. Jay at the Zenith Road storage shed. Reichert test-fired the Hi-Point pistol but was unable to test-fire the .380 caliber pistol because it did not have a firing pin when she received it. Reichert said that she was unable to determine if the bullet fragments recovered from Dixon’s body or the bullet fragments recovered from Byrd had been fired from the Hi-Point pistol. However, Reichert said that one of the bullet fragments recovered from Dixon’s body, a lead bullet core, was consistent with a nominal .38 caliber class bullet. According to Reic-hert, a .38 caliber class bullet can be fired from a .380 pistol, a nine-millimeter pistol, a .38 special pistol, or a .357 magnum pistol. Reichert also testified that 8 of the 14 spent shell casings found at the scene of the shooting had been fired from the nine-millimeter Hi-Point pistol. Reichert said that when she received the Hi-Point pistol, it had five live rounds in it and that the pistol could only hold a maximum of nine rounds; thus, Reichert concluded, to have fired eight shots and still have five live rounds left in the magazine, the Hi-Point pistol had to have been reloaded at some point during the shooting. Reichert said that the other six spent shell casings found at the scene had not been fired from the Hi-Point pistol and could not have been fired from the .380 caliber pistol, but she determined that those six spent casings had been fired from the same weapon.

John Crawford, an investigator with the Dothan police department, testified that he took a statement from Morton around noon on April 20, 2006, the day after the shooting. Inv. Crawford said that Morton voluntarily came to the police station. Before taking the statement, Inv. Crawford advised Morton of his Miranda, rights and Morton signed a waiver-of-rights form and agreed to speak with him. Inv. Crawford said that no threats, promises, or inducements were made to get Morton to make a statement. Inv. Crawford testified that Morton did not appear to be under the influence of drugs or alcohol and that Morton was able to communicate with him. Inv. Crawford testified that James and Rivers had already been arrested by the time Morton turned himself into the police.

In his statement to police, which was introduced into evidence by the State, Morton said that he had telephoned Dixon using a cellular telephone belonging to his cousin, Michael Rogers, and asked to purchase marijuana. Morton said that James, Rogers, and Rivers were present when he telephoned Dixon and that “they,” presumably meaning James, Rogers, and Rivers, had told him to telephone Dixon. (C. 1035.) Morton also said that they had told him that they were going to rob Dixon when he arrived to sell the marijuana to Morton. However, Morton said that he thought they were joking, even though he knew they carried guns. When Dixon arrived in the neighborhood, Morton said, he was inside his aunt’s house and Kiki Rich knocked on the door and told him that Dixon was there. Morton said that immediately after he purchased the marijuana from Dixon, “they jumped outta nowhere and just started waiving the guns ... and I laid on the ground.” (C. 1036.) Morton said that Rivers approached the driver’s side of the car and that James approached the front of the car and that one of them said: “Give it up bitch.” (C. 1037.) Dixon then tried to speed away and James and Rivers started shooting. After the shooting, Morton said, James and Rivers ran to Townsend’s house hollering “we shot him” and he followed them. (C. 1043.) Morton said that he hollered at James and Rivers asking them “why did y’all shoot 'em” but that James and Rivers did not respond. (C. 1042.) Morton said James then ran to his house and that he (Morton) got in a truck belonging to his cousin, Bobby Rogers (“Bobby”), and so did Rivers. According to Morton, Bobby drove Rivers to his home in Rolling Hills and then drove Morton to his mother’s home in Kinsey.

Morton testified on his own behalf. Morton stated that he knew Dixon and that he had purchased marijuana from Dixon on numerous occasions. On April 19, 2006, his mother dropped him off at his aunt’s house on Hamilton Street late in the afternoon. He went to Townsend’s house, where he saw James and Rivers. According to Morton, James and Rivers indicated that they wanted to rob someone, but they did not know who they wanted to rob. Morton said that James then told him to telephone Dixon so that James could rob Dixon. Morton said that he agreed to call Dixon for James because he “wanted to smoke some marijuana.” (R. 1226.) Morton testified that he telephoned Dixon and asked to purchase marijuana. Morton admitted that he knew that both James and Rivers carried guns on a regular basis. Shortly after making the call, Morton saw Dixon’s car on Hamilton Street. Morton asked Kiki Rich to go to the car and tell Dixon to drive around the corner. After Dixon drove around the corner, Morton approached the car, handed money to the passenger, and received marijuana in return. At that point, Morton said, James and Rivers jumped out of the bushes with guns. Morton admitted that he knew that James and Rivers had been hiding in the bushes, but nonetheless said that he “was in shock” when they jumped out of the bushes. (R. 1233.) James told Morton to lie on the ground and Morton complied. Morton said that James told him to lie on the ground because “[t]hey wanted to make it look like I didn’t have nothing to do with it, because they didn’t plan on killing nobody.” (R. 1287.) Morton testified that, although he was not surprised that a robbery took place, he was surprised at the shooting. While on the ground, Morton said, he heard what sounded like someone “mash[ing] the gas,” but the ear did not move. (R. 1233.) Morton then heard gunshots, saw the car drive away, and saw James shooting at the car as it sped away. Morton said that bullets were ricocheting around him and that he “felt the heat from the bullets.” (R. 1235.) According to Morton, if he had not “moved out of the way, [he] would have been shot too.” (R. 1235.)

After the shooting ended, Morton said, he ran to Townsend’s house, stayed for about 10 minutes and then rode with Bobby to drop off Rivers, after which Bobby took him home to his mother’s house in Kinsey, and he spoke with his mother. Morton told his mother that he had “seen somebody get shot,” that “there wasn’t nothing [he] could do about it,” and that “if we said something, they w[ould] kill us.” (R. 1237.) The following morning, however, Morton voluntarily went to the police station to give a statement. According to Morton, there had never been any discussion between him, James, and Rivers about anyone being shot and he had never told James and Rivers to shoot anyone. On cross-examination, Morton admitted that he did not know whether the weapons James and Rivers possessed were loaded and that he did not ask to see the weapons before the robbery to make sure they were not loaded. Morton also testified on cross-examination that he had written a letter to Dixon’s family apologizing for his involvement in the robbery and admitting that he had made the telephone call that resulted in Dixon’s coming to the neighborhood where he was shot and killed.

Debra Morton (“Debra”), Morton’s mother, also testified on Morton’s behalf. Debra said that on the night of April 19, 2006, Morton came home “hysterical” saying “that he had seen something happen.” (R. 1166.) Debra said that Morton was “pacing the floor” and “ringing his hands” and that he was “afraid” and “crying.” (R. 1167.) Morton told Debra that he had called Dixon to purchase marijuana. Although Morton did not tell Debra that he had planned or had at least known about the robbery, he told her that he had witnessed the shooting and that James and Rivers were the shooters. Morton also told Debra that, after the shooting, he, James, and Rivers all ran up the street toward Townsend’s house but that Townsend told them to leave. Finally, Morton told Debra that Bobby drove him home after first driving Rivers home, and he warned Debra' that if she said anything about the shooting “they would kill us.” (R. 1186.) Debra testified that she and Morton talked for about an hour after he got home and that she told him that they “would figure it out in the morning.” (R. 1167.) According to Debra, she “held [her] child all night long.” (R. 1167.) The following morning, Debra said, she initially went to the convenience store where she worked to open the store, but then came home and, at Morton’s request, took Morton to the police station to make a statement about the shooting.

The defense also called Carla Woodall, the circuit clerk and custodian of records for Houston County, to impeach the testimony of Tracy Rich that she had moved after the shooting because she was in fear for her and her family’s safety. Woodall testified that county records indicated that Dothan Construction, Inc., had initiated an eviction action against Tracy Rich in 2006, and that Rich had responded to the action on June 21, 2006.

Finally, to impeach the testimony of El-ishous Townsend, the defense called Mike Etress, a sergeant with the Dothan Police Department. Sgt. Etress testified that he took a statement from Townsend regarding the shooting. According to Sgt. Etress, Townsend said in his statement, contrary to his testimony at trial, that he never saw a young girl the night of the shooting. Rather, in his statement, Townsend said that Lashawn Poke, one of Morton’s cousin’s, had told him that there was a young girl involved.

In rebuttal, the State called Marsha Dixon (“Marsha”), Dixon’s mother, to testify. Marsha testified that she never received a letter from Morton apologizing to her and her family.

I.

Morton first contends on appeal that the evidence was insufficient to sustain his convictions for capital murder and attempted murder because, he says, the State failed to prove an essential element of both crimes — that he had the intent to kill. Morton moved for a judgment of acquittal at the close of the State’s case and again at the close of defense’s case, arguing to the trial court, as he argues on appeal, that the State failed to present sufficient evidence of his intent to kill.

““‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.”’ Ballenger v. State, 720 So.2d 1038, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim. App.1984), aff'd, 471 So.2d 493 (Ala. 1985). ‘ “The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.” ’ Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App. 1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). ‘ “When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.’” Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App. 1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). ‘The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).”

Gavin v. State, 891 So.2d 907, 974 (Ala. Crim.App.2003).

“In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir. 1974); United States v. McGlamory, 441 F.2d 130 (5th Cir.1971); Clark v. United States, 293 F.2d 445 (5th Cir.1961).
“ ‘[W]e must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; but rather whether the jury might so conclude. Harper v. United States, 405 F.2d 185 (5th Cir.1969); Roberts v. United States, 416 F.2d 1216 (5th Cir.1969). The procedure for appellate review of the sufficiency of the evidence has been aptly set out in Odom v. United States, 377 F.2d 853, 855 (5th Cir. 1967):
“ ‘ “Our obligation, therefore, is to examine the record to determine whether there is any theory of the evidence from which the jury might have excluded every hypothesis except guilty beyond a reasonable doubt. Rua v. United States, 5 Cir., 1963, 321 F.2d 140; Riggs v. United States, 5 Cir., 1960, 280 F.2d 949. In Judge Thornberry’s words, “ ‘ “ ‘ ... the standard utilized by this Court is not whether in our opinion the evidence and all reason-ablé inferences therefrom failed to exclude every hypothesis other than guilt, but rather whether there was evidence from which the jury might reasonably so conclude.’ Williamson v. United States, 5th Cir., 1966, 365 F.2d 12, 14. (Emphasis supplied).”
“‘The sanctity of the jury function demands that this court never substitute its decision for that of the jury. Our obligation is [to] examine the welter of evidence to determine if there exists any reasonable theory from which the jury might have concluded that the defendant was guilty of the crime charged.’ McGlamory, 441 F.2d at 135 and 136.”

Cumbo v. State, 368 So.2d 871, 874-75 (Ala.Crim.App.1978).

“Section 13A-2-23(2), Ala.Code 1975, provides that ‘[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 ... [h]e aids or abets such other person in committing the offense.’ ‘[I]n Alabama, an individual who is present with the intent to aid and abet in the commission of an offense is as guilty as the princip[al] wrongdoer.’ Price v. State, 725 So.2d 1003, 1055 (Ala. Crim.App.1997), aff'd, 725 So.2d 1063 (Ala.1998). ‘The words “aid and abet” encompass all assistance by acts, words of encouragement, or support, or presence, actual or constructive, to render assistance should it become necessary.’ Henry v. State, 555 So.2d 768, 769 (Ala. Crim.App.1989). ‘The culpable participation of the accomplice need not be proved by positive testimony, and indeed rarely is so proved. Rather, the jury must examine the conduct of the parties and the testimony as to the surrounding circumstances to determine its existence.’ Miller v. State, 405 So.2d 41, 46 (Ala.Crim.App.1981) (citation omitted). ‘The jury is to determine whether the appellant’s participation exists and the extent of it from the conduct of the parties and all the testimony presented.’ Walls v. State, 378 So.2d 1186, 1191 (Ala.Crim.App.1979). ‘Such facts as the defendant’s presence in connection with his companionship, his conduct at, before, and after the commission of the act, are potent circumstances from which participation. may be inferred.’ Sanders v. State, 423 So.2d 348, 351 (Ala.Crim.App.1982).”

Hams v. State, 854 So.2d 145, 151 (Ala. Crim.App.2002).

“[T]he accomplice liability doctrine may be used to convict a non-trigger-man accomplice if, but only if, the defendant was an accomplice in the intentional killing as opposed to being an accomplice merely in the underlying felony.” Ex parte Raines, 429 So.2d 1111, 1112 (Ala. 1982). “No defendant can be found guilty of a capital offense unless he had an intent to kill, and that intent to kill cannot be supplied by the felony-murder doctrine.” Ex parte Woodall, 730 So.2d 652, 657 (Ala. 1998). However, “ ‘[i]ntent, ... being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence.’ ” Seaton v. State, 645 So.2d 341, 343 (Ala.Crim.App.1994) (quoting McCord v. State, 501 So.2d 520, 528-29 (Ala.Crim. App.1986)). Intent “ ‘ “may be inferred from the character of the assault, the use of a deadly weapon and other attendant circumstances.” ’ ” Farrior v. State, 728 So.2d 691, 695 (Ala.Crim.App.1998) (quoting Jones v. State, 591 So.2d 569, 574 (Ala.Crim.App.1991), quoting in turn Johnson v. State, 390 So.2d 1160, 1167 (Ala. Crim.App.1980)). “ ‘The intent of a defendant at the time of the offense is a jury question.’” C.G. v. State, 841 So.2d 281, 291 (Ala.Crim.App.2001), aff'd, 841 So.2d 292 (Ala.2002) (quoting Downing v. State, 620 So.2d 983, 985 (Ala.Crim.App.1993)). Indeed, “[wjhether the accused possesses the intent to cause the death of another person is a matter to be determined by the jury.” Paige v. State, 494 So.2d 795, 796 (Ala.Crim.App.1986).

In this case, viewing the evidence as set out in detail above in the light most favorable to the State, we conclude that it was sufficient to warrant sending the cases to the jury on the issue of Morton’s intent. Therefore, the trial court properly denied Morton’s motions for a judgment of acquittal.

II.

Morton also raises on appeal several challenges to the trial court’s jury instructions as they relate to the capital-murder charge. Because of our disposition of this case, we need address only one of those challenges. Morton contends that the trial court erred when it refused, over his objection, to instruct the jury on felony murder — with the underlying felony being shooting into an occupied vehicle — as a lesser-included offense of the capital-murder charge. He argues that “[tjhere was abundant evidence that would support a charge of felony murder” and that he was entitled to such an instruction even though he denied committing the offense. (Morton’s brief, p. 68.) Specifically, according to Morton, his own testimony that there had been no discussion with his codefen-dants about shooting or killing anyone and that James had told him that nobody would get hurt, as well as James’s testimony that the first shots he fired at the vehicle were warning shots, among other testimony, supported a charge on felony murder. We agree.

“Felony murder committed by shooting into an occupied vehicle is a lesser included offense to the capital offense of ‘[m]urder committed by or through the use of a deadly weapon while the victim is in a vehicle.’ § lSA-5-40(a)(17), Ala.Code, 1975.” Mitchell v. State, 706 So.2d 787, 800 (Ala.Crim.App.1997). “A felony-murder is committed when a person commits or attempts to commit one of several enumerated felonies, and, in the course of or in furtherance of the crime or in flight from the crime, that person causes another person’s death.” Knotts v. State, 686 So.2d 431, 457 (Ala.Crim.App.1995), aff'd, 686 So.2d 486 (Ala.1996). “Felony murder requires an intent to commit the underlying felony,” Saunders v. State, 10 So.3d 53, 95 (Ala.Crim.App.2007), but does not necessarily require an intent to kill. In Heard v. State, 999 So.2d 992 (Ala.2007), the Alabama Supreme Court explained:

“According to Alabama law, a defendant must have the intent to kill in order to be found guilty of a capital offense. § 13A-5-40(b), Ala.Code 1975; Ex parte Woodall, 730 So.2d 652, 657 (Ala.1998) (‘No defendant can be found guilty of a capital offense unless he had an intent to kill, and that intent to kill cannot be supplied by the felony-murder doctrine.’). Felony murder, on the other hand, does not require the specific intent to kill; it requires only the intent to commit the underlying felony. § 13A-6 — 2(a)(3), Ala.Code 1975; Mitchell v. State, 706 So.2d 787 (Ala.Crim.App. 1997). The absence of an intent to kill, however, is not necessarily an element of felony murder, as contrasted with the intent to kill, which is an element of capital murder.
“In other words, a felony-murder conviction does not require proof that the defendant unintentionally killed the victim, only that the defendant intended to commit the underlying felony. Therefore, it is possible that a defendant intended to kill the victim (the element necessary for the capital conviction) while at the same time intending to commit an underlying felony (the element necessary for the felony-murder conviction). Therefore, the most that can be said of the verdicts finding Heard guilty both of capital murder and of felony murder is that they may be merely inconsistent. These two verdicts are not mutually exclusive; they do not contain mutually exclusive essential elements.”

999 So.2d at 1005 (emphasis omitted).

“ ‘A person accused of the greater offense has a right to have the court charge on lesser included offenses when there' is a reasonable theory from the evidence supporting those lesser included offenses.’ MacEwan v. State, 701 So.2d 66, 69 (Ala.Crim.App.1997). An accused has the right to have the jury charged on ‘ “any material hypothesis which the evidence in his favor tends to establish.’” Ex parte Stork, 475 So.2d 623, 624 (Ala.1985). ‘[E]very accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however[ ] weak, insufficient, or doubtful in credibility,’ Ex parte Chavers, 361 So.2d 1106, 1107 (Ala.1978), ‘even if the evidence supporting the charge is offered by the State.’ Ex parte Myers, 699 So.2d 1285, 1290-91 (Ala.1997), cert. denied, 522 U.S. 1054, 118 S.Ct. 706, 139 L.Ed.2d 648 (1998). However, ‘[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.’ § 13A-l-9(b), Ala.Code 1975. ‘The basis of a charge on a lesser-included offense must be derived from the evidence presented at trial and cannot be based on speculation or conjecture.’ Broadnax v. State, 825 So.2d 134, 200 (Ala. Crim.App.2000), aff'd, 825 So.2d 233 (Ala.2001), cert. denied, 536 U.S. 964, 122 S.Ct. 2675, 153 L.Ed.2d 847 (2002). ‘ “A court may properly refuse to charge on a lesser included offense only when (1) it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) the requested charge would have a tendency to mislead or confuse the jury.” ’ Williams v. State, 675 So.2d 537, 540-41 (Ala.Crim.App. 1996), quoting Anderson v. State, 507 So.2d 580, 582 (Ala.Crim.App.1987).”

Clark v. State, 896 So.2d 584, 641 (Ala. Crim.App.2003) (opinion on return to remand). Even when a defendant denies committing the offense, he or she is entitled to an instruction on a lesser-included offense if there is any evidence to support such a charge. See, e.g., Ex parte Stork, 475 So.2d 623, 624-25 (Ala.1985), and Ex parte Pruitt, 457 So.2d 456, 457 (Ala.1984).

Applying the principles of law set forth above and viewing the evidence in the light most favorable to the defendant as we must, see Ex parte McGriff, 908 So.2d 1024, 1036 (Ala.2004), we hold that the evidence presented at trial, as set out in detail above, warranted a jury instruction on the lesser-included offense of felony murder by shooting into an occupied vehicle. See Mitchell v. State, 706 So.2d 787, 799-800 (Ala.Crim.App.1997). Because the trial court erred in denying Morton’s request for a jury instruction on felony murder by shooting into an occupied vehicle as a lesser-included offense of capital murder by or through the use of a deadly weapon while the victim was inside a vehicle, Morton is entitled to a new trial on the capital-murder charge.

Based on the foregoing, we affirm Morton’s conviction and sentence for attempted murder. However, we reverse Morton’s conviction and sentence for capital murder and remand this case for a new trial.

APPLICATION FOR REHEARING OVERRULED; OPINION OF NOVEMBER 2, 2012, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

WINDOM, P.J., and WELCH, BURKE, and JOINER, JJ., concur.

On Second Application for Rehearing

KELLUM, Judge. ■

On August 30, 2013, this Court affirmed Everett Bernard Morton’s conviction for one count of attempted murder, see § 13A-6-2 and § 13A-4-2, Ala.Code 1975, but reversed Morton’s conviction for murder made capital because it was committed by or through the use of a deadly weapon while the victim was inside a vehicle, see § 13A-5-40(a)(17), Ala.Code 1975, on the ground that the trial court had erred in not instructing the jury on felony murder as a lesser-included offense of the capital charge. See Morton v. State, 154 So.3d 1065 (Ala.Crim.App.2013). In doing so, this Court noted that Morton had raised on appeal several additional challenges to the trial court’s jury instructions relating to the capital-murder charge but that, because we were reversing the capital conviction on another ground, those challenges did not have to be addressed. We also specifically noted that Morton did not challenge any of the trial court’s jury instructions as they related to the attempted-murder charge.

On September 13, 2013, Morton filed an application for rehearing requesting that we set aside our judgment affirming his attempted-murder conviction. Morton argues on rehearing that this Court “misapprehended” two of his arguments relating to the court’s jury instructions as relating only to the capital-murder charge when, he says, they related to both the capital-murder charge and the attempted-murder charge. Although we seriously question whether Morton’s initial brief on appeal was sufficiently clear to alert this Court that his challenges to the trial court’s jury instructions related to both the capital-murder charge and the attempted-murder charge, we nevertheless, out of an abundance of caution, address those two claims to the extent that they could arguably be construed as relating to the attempted-murder charge.

I.

First, Morton contends that the trial court erroneously instructed the jury that the intent to kill could be inferred from the acts, behavior, and circumstances proven by the State. He argues that the court’s instruction improperly created a mandatory presumption of intent to kill. Morton properly objected to the court’s instruction on this ground at the conclusion of the court’s oral charge.

In charging the jury on the elements of capital murder, the court instructed the jury that it could “infer intent from the acts, behavior, and circumstances proven in evidence that the defendant committed at the time.” (R. 1379.) Although not the most artfully worded instruction, the instruction did not create a mandatory presumption that Morton possessed the requisite intent; rather, it properly conveyed to the jury the general rule that intent to kill “ ‘ “may be inferred from the character of the assault, the use of a deadly weapon and other attendant circumstances.”’” Farrior v. State, 728 So.2d 691, 695 (Ala.Crim.App.1998) (quoting Jones v. State, 591 So.2d 569, 574 (Ala. Crim.App.1991), quoting in turn Johnson v. State, 390 So.2d 1160, 1167 (Ala.Crim. App.1980)).

Morton’s reliance on Salmon v. State, 460 So.2d 334 (Ala.Crim.App.1984), is misplaced. In Salmon, the trial court instructed the jury “that ‘the law says one is presumed to intend the natural and probable and inevitable consequence of his own intentional acts.’ ” 460 So.2d at 338 (emphasis added). This Court held in Salmon that, under Sandstrom v. Montana, 442 U.S. 510, 513, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)—in which the United States Supreme Court held that an instruction that “ ‘[t]he law presumes that a person intends the ordinary consequences of his voluntary acts’ ” was erroneous—the court’s instruction created a conclusive presumption of intent that unconstitutionally shifted the burden of proof to the defendant. However, in this case, the court did not instruct the jury that it must presume that Morton intended the natural and probable and inevitable consequences of his own intentional acts, as was the case in Salmon; rather, the court here merely instructed the jury that it may infer that Morton had the intent to kill based on the his acts and behavior and the circumstances surrounding the crime.

It is well settled that an instruction that the jury may infer intent from the surrounding circumstances, like the instruction here, is permissible- and proper. See, e.g., Ex parte Burgess, 827 So.2d 193, 199 (Ala.2000) (“An instruction that ‘intent to commit murder may be presumed from the defendant’s act of using a deadly weapon,’ would unconstitutionally shift to the defendant the burden of proving lack of specific intent.... The correct instruction on this particular point would be that intent to kill may be inferred from the defendant’s act of using a deadly weapon.”); and McNabb v. State, 887 So.2d 929, 979 (Ala.Crim.App.2001) (“The court in this case correctly instructed the jury that the intent to kill could be infeired from the use of a deadly weapon; it did not imper-missibly charge the jury that the intent to kill should be presumed from the use of a deadly weapon. Therefore, there was no error, much less plain error, in the trial court’s instruction.”), aff'd, 887 So.2d 998 (Ala.2004). See also Hart v. State, 612 So.2d 520, 528-29 (Ala.Crim.App.), aff'd, 612 So.2d 536 (Ala.1992); and DeRamus v. State, 565 So.2d 1167, 1170 (Ala.Crim.App. 1990).

The court here instructed the jury that it could infer intent from Morton’s behavior and from the acts and the circumstances surrounding the crime; the court did not impermissibly instruct the jury that it was required to presume intent. Therefore, there was no error in the above-quoted instruction.

II.

Second, Morton contends that the trial court erred in refusing to give his requested jury instruction no. 5 regarding accomplice liability. He argues that the instruction was a correct statement of the law and that it supported his theory that he did not have the intent to kill. Morton’s requested jury instruction no. 5 reads:

“The accomplice is criminally responsible for acts which are the direct, proximate, natural result of the conspiracy formed, but he is not responsible for any special act, not within the scope of the common purpose, but growing out of the individual malice of the perpetrator.”

(C. 486.) Morton properly objected to the court’s refusal to give this instruction at the conclusion of the court’s oral charge.

As noted in our August 30, 2013, opinion, “every accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however, weak, insufficient, or doubtful in credibility.” Chavers v. State, 361 So.2d 1106, 1107 (Ala.1978). However, “[w]hen requested charges are either fairly and substantially covered by the trial judge’s oral charge or are confusing, misleading, ungrammatical, not predicated on a consideration of the evidence, argumentative, abstract, or a misstatement of the law, the trial judge may properly refuse to give such charges.” Ward v. State, 610 So.2d 1190, 1194 (Ala.Crim.App.1992).

In this case, the trial court instructed the jury on accomplice liability; thus, the requirements for complicity were fairly and substantially covered by the court’s charge. Moreover, although the requested instruction was a correct statement of the law — it was a direct quote from the Alabama Supreme Court’s opinion in Ex parte Woodall, 730 So.2d 652, 658 (Ala.1998)— standing alone, the instruction was misleading and confusing because it contained legal terms that were not applicable to this case and that were not defined. Specifically, the requested instruction included the term “conspiracy,” but that term was not defined in the instruction and Morton was never charged with conspiracy. The requested instruction also included the term “malice,” but that term, too, was not defined in the instruction and malice is not an element of attempted murder. See, e.g., Jackson v. State, 265 Ala. 690, 691, 93 So.2d 808, 810 (1957) (holding that defendant’s requested jury instruction on accident was properly refused where it failed to define the term “accident”); and Wakefield v. State, 447 So.2d 1325 (Ala.Crim. App.1983) (same). See also Brown v. State, 401 So.2d 213, 216 (Ala.Crim.App. 1981) (holding that jury instruction “that the killing must not be the ‘offspring of malice’ in order for the crime to be reduced from murder to manslaughter has a misleading tendency” because the absence of malice is no longer a requisite to reduce the offense of murder to manslaughter). Cf., Carpenter v. State, 395 So.2d 110, 115 (Ala.Crim.App.1980) (holding that, in murder prosecution, instruction identical to the instruction requested here was properly refused on the ground that it “vitiate[d] the felony-murder doctrine”). Therefore, the trial court did not err in refusing Morton’s requested jury instruction no. 5.

Based on the foregoing, Morton’s application for rehearing is overruled.

APPLICATION OVERRULED.

WINDOM, P.J., and WELCH, BURKE, and JOINER, JJ., concur.

      . Testimony indicated that although Morton lived with his mother in Kinsey, he spent a substantial amount of time at his aunt’s house on Hamilton Street in Dothan.

      . It is unclear from the record whether James was indicted for capital murder by or through the use of a deadly weapon while the victim was inside a vehicle, as Morton was, or for capital murder during a robbery.

      . The State presented no testimony regarding what that information was or how the police had obtained the information.

      . The State presented no testimony regarding how the police discovered the location of the pistols or what led the police to believe that the pistols had been used in the shooting.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Morton makes no argument on appeal regarding the jury instructions as they relate to the attempted-murder charge.

      . The trial court did not restate the instruction during its charge on attempted murder.

      . Additionally, an identical instruction was given in Smith v. State, 795 So.2d 788, 831 (Ala.Crim.App.2000), as part of a lengthy charge on complicity, and this Court, in addressing the defendant's claim that the trial court’s instructions on complicity erroneously lowered the State's burden of proof, held that the court’s instructions as a whole "were thorough and accurate statements of the law.”