Allen Hinkle, alias v. State of Alabama

Annotate this Case

Download PDF

REL: 05/28/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2009-2010 CR-08-1778 Allen Hinkle v. S t a t e o f Alabama Appeal from J e f f e r s o n C i r c u i t (CC-09-873; CC-09-874) On A p p l i c a t i o n KELLUM, Court f o r Rehearing Judge. This withdrawn Court's opinion of March and t h e f o l l o w i n g o p i n i o n 26, 2010, i s hereby i s substituted therefor. CR-08-1778 The of appellant, murder, count of 13A-6-2, life Allen Hinkle, a violation attempted was convicted o f § 13A-6-2, murder, A l a . Code 1975. a The A l a . Code violation trial imprisonment f o r the murder court of o f one 1975, one 13A-4-2 §§ and and sentenced Hinkle c o n v i c t i o n and t o 99 imprisonment f o r the attempted-murder c o n v i c t i o n . also the ordered t o pay Crime V i c t i m s Compensation Because H i n k l e State's Hinkle shooting death child, does evidence, suffice. and w i t h Caneshua occurred a was of and Henry's to pay not c h a l l e n g e brief of the Henry, the mother went Caneshua's f o r the of Hinkle's Henry. The Kimyatta testified at Kimyatta that Hinkle the previous evening to f o r her and Hinkle's child. to Caneshua arrived at Caneshua's apartment at approximately that evening. When s h e a r r i v e d , C a n e s h u a had i t with somebody 2 of shootings apartment diapers into will f o r the n o n f a t a l shooting Kimyatta complex. to of the facts a r r e s t e d and c h a r g e d w i t h murder cousin, was assessment the s u f f i c i e n c y recitation Caneshua years' Hinkle e a r l y i n t h e m o r n i n g on O c t o b e r 5, 2 0 0 8 , apartment "got an to Fund. a t t e m p t e d murder Henry's to restitution count Kimyatta 11:00 t o l d her that i n the breezeway." bring p.m. Hinkle (R. 87.) CR-08-1778 Kimyatta of t e s t i f i e d t h a t C a n e s h u a was u p s e t w i t h H i n k l e this altercation Kimyatta as left a "pow" 92.) Hinkle to to her c a r , Hinkle Caneshua's heard protect Hinkle apartment. sound A f e w moments i n the breezeway and shot Kimyatta while walked past later; her heading later, Kimyatta of the apartment. then approached h e r and s a i d , her?" to leave. Caneshua's apartment a l i t t l e s h e was w a l k i n g toward and had o r d e r e d because "What? i n the right You (R. trying cheek. (R. 92.) Officer Tekulve Department was Birmingham when apartment patrolling he was Officer and he that parking flagged Bowden had k i l l e d toward H i n k l e , of Police neighborhood down b y K i m y a t t a outside occurred. of the Kimyatta that Hinkle had shot her i n the face Caneshua. Kimyatta pointed who was standing the apartment arrested Hinkle and placed cruiser. According custody Birmingham Point the shootings l o t of in the the Center complex i n which informed Bowden Bowden complex, him to Officer next -- made t h e f o l l o w i n g 3 to a car i n the and Officer i n the back Bowden, H i n k l e unsolicited Officer of Bowden his police -- w h i l e he was statement: "Fuck CR-08-1778 this shit. anyway. She had G i v e me i t coming. the electric She chair." A f t e r b o t h s i d e s r e s t e d and on the applicable charges set out law, the i n the d i d me the jury wrong. dead i n s t r u c t e d the jury (R. court found indictments. I was 78-79.) Hinkle This guilty appeal on a l l followed. I. On it appeal, allowed incident death Hinkle the that argues that State to occurred introduce few repeatedly Specifically, Hinkle contends inadmissible evidence R. trial court testimony weeks Hinkle not i n which a the before Caneshua of a c o l l a t e r a l the bad a d m i s s i b l e under the i n t e n t e x c e p t i o n when regarding h i t Caneshua that erred in an Henry's the face. testimony a c t and that was i t to Rule 404(b), was Ala. Evid. Before trial, the State introduce evidence September 15, 2007, in Henry. At trial, Caneshua of an filed incident which month b e f o r e her apartment to C a n e s h u a was eat dinner the 4 of i t s intent to occurred on had allegedly presence t e s t i f i e d that killed, and that Hinkle outside Monica Henry, Caneshua's s i s t e r , one notice she spend visited the of assaulted the jury, approximately Caneshua night. at Monica CR-08-1778 testified Hinkle that was while she and Caneshua were p r e p a r i n g " i n and o u t " o f t h e apartment. Monica arguing. while was showering, Caneshua came into asked her f o r her c e l l u l a r Caneshua was telephone to c a l l stood between arguing angry she h e a r d and (R. 1 4 1 . ) Caneshua the bathroom telephone. wanted the police. Hinkle use Monica Monica's came i n t o explained that Hinkle h i t Caneshua m u l t i p l e times and that incident. evidence face s h e was a b l e was of the i n c i d e n t because allowed Monica bruised intent was to t e s t i f y admission or was at t r i a l exclusion t h e sound State, 808 S o . 2 d 1 1 4 8 , 1 1 9 1 So. 2 d 1215 issue discretion ( A l a . 2001) . to prove the Hinkle's case; i t then the incident. evidence (Ala. Crim. after court ruled that i n this of the t r i a l i s a court." of matter Taylor App. 2000), "The q u e s t i o n 5 i n the face and s w o l l e n about of Monica t o b r e a k up t h e f i g h t admissible at within 808 and h i t Caneshua. Over H i n k l e ' s o b j e c t i o n , t h e t r i a l intent "The before Caneshua's continued Caneshua t o l d H i n k l e t o get out o f t h e became a n g r y fist that cellular and and H i n k l e a closed and the bathroom, bathroom, with Hinkle testified t h e women a n d t h e b a t h r o o m d o o r , w i t h Caneshua. Later, and with Monica to dinner, v. aff'd, admissibility CR-08-1778 of evidence court, will i s generally left and not the be Ex This 1130 404(b), "[e]vidence ... be therewith." admissible absence clear 771 on of 2d 1093, regard to the App. Evid., 1103 of (Ala. admission State, 740 provides, in of So. part, wrongs, or a c t s i s not of a person i n order However, preparation, mistake abuse 2d 1998). R. v. trial question showing of So. Davis the that other-crimes plan, admissible evidence of knowledge, or accident." that because the murder Caneshua from that t o show a c t i o n i n f o r o t h e r p u r p o s e s , s u c h as p r o o f intent, of See crimes, character opportunity, or Ala. of other prove the conformity Loggins, evidence. (Ala. Crim. Rule to e x c e p t upon a parte discretion determination i s equally true with collateral-acts 1115, court's reversed discretion." 2000). trial to the Rule "may motive, identity, 404(b), Ala. R. Evid. Hinkle Hinkle's deadly present intent. contends intent to weapon i n e f f e c t u a t i n g the evidence The defendant's of a Alabama use of a collateral offense Court deadly weapon has to could Hinkle's murder, the Supreme 6 jury State in use order a of could to recognized kill infer a not prove that victim a is CR-08-1778 sufficient intended 2d 193, the to to give kill 199 rise the an inference victim. See, (Ala. 2000)("intent defendant's act demonstrating that Caneshua, the the could of State jury to using Hinkle infer a sufficient i n t e n t to murder Caneshua Henry. that once present of the evidence intent. Crim. 1159 inference See App. of ( A l a . C r i m . App. State evidence of omitted). State to between the may not that on charged "be with created, 802 v. testimony Caneshua offense, trial State, as pursuant 7 kill from which requisite State held may not support a 269 (Ala. 2d 1155, State bears 265, 440 So. from the in as showing act itself," circumstantial chief.'")(citations court erred i n allowing regarding the prior evidence of to 404(b), Rule by 2d So. offenses i n i t s case the and the the to inferred extraneous element and Brewer can Accordingly, Hinkle acted from Thus, shoot 1983)("'When the element the use present to So. inferred evidence offenses State, quoting the burden of proof the v. be 827 However, t h i s C o u r t has been collateral Hunter 2000), has defendant weapon."). handgun Hinkle the Burgess, may deadly used that parte to k i l l a produced Ex that the altercation intent to commit because the CR-08-1778 facts of t h e murder already gave rise t o an inference of intent. Nevertheless, of the p r i o r The we c o n c l u d e t h a t t h e a d m i s s i o n altercation, harmless-error although rule provides, of evidence e r r o r , was h a r m l e s s e r r o r . i n pertinent part: "No j u d g m e n t may be r e v e r s e d o r s e t a s i d e ... on t h e g r o u n d o f ... i m p r o p e r a d m i s s i o n or r e j e c t i o n of evidence, ... u n l e s s i n t h e o p i n i o n o f t h e c o u r t t o w h i c h t h e a p p e a l i s t a k e n o r a p p l i c a t i o n i s made, after examination of the e n t i r e cause, i t should appear t h a t the e r r o r complained of has p r o b a b l y injuriously affected substantial rights of the parties." Rule 4 5 , A l a . R. A p p . P. I n Chapman v . C a l i f o r n i a , 3 8 6 U.S. S t a t e s Supreme C o u r t h e l d t h a t b e f o r e constitutional rights appellate must be a b l e court can harmless beyond a reasonable So. 2 d 125 (Ala. 1993), be 18 to to declare t h e Alabama the United the v i o l a t i o n of c e r t a i n held doubt. (1967), be harmless, a belief I n Ex p a r t e Supreme C o u r t that i t was Crymes, 630 explained: "In determining whether the admission of improper testimony i s r e v e r s i b l e e r r o r , t h i s Court has s t a t e d t h a t t h e r e v i e w i n g c o u r t must d e t e r m i n e w h e t h e r t h e ' i m p r o p e r a d m i s s i o n o f t h e e v i d e n c e ... m i g h t h a v e adversely a f f e c t e d the defendant's right to a f a i r t r i a l , ' and before t h e r e v i e w i n g court can a f f i r m a judgment b a s e d upon t h e ' h a r m l e s s e r r o r ' r u l e , t h a t c o u r t must f i n d c o n c l u s i v e l y t h a t t h e t r i a l c o u r t ' s e r r o r d i d n o t a f f e c t t h e outcome o f t h e t r i a l o r 8 the CR-08-1778 otherwise defendant 630 So. 2d a t 126. 208, 210 inquiry it prejudice a substantial See a l s o , clear returned beyond Moreover, instances the 624 S o . 2 d the proper harmless-error the improperly introduced evidence, " i s reasonable a verdict of Ex p a r t e Greathouse, (Ala. 1993)(holding that asks, absent right doubt that the jury would of g u i l t y " ) . this Court has previously held that where t e s t i m o n y has been e r r o n e o u s l y a d m i t t e d evidence, that admission of lawful same facts. App. 2001), testimony c a n be evidence Supreme C o u r t 887 rendered that I n McNabb v . S t a t e , aff'd, have tends harmless the t o demonstrate the ( A l a . 2004), (Ala. Crim. t h e Alabama explained: "'"[T]estimony that may be i n a d m i s s i b l e may be rendered harmless by p r i o r or subsequent lawful t e s t i m o n y t o t h e same e f f e c t o r f r o m w h i c h t h e same f a c t s c a n be i n f e r r e d . " ' J a c k s o n v . S t a t e , 791 So. 2d 979, 1013 ( A l a . C r i m . A p p . ) , c e r t . d e n i e d , 791 S o . 2 d 1 0 4 3 ( A l a . 2 0 0 0 ) , c e r t . d e n i e d , 532 U.S. 9 3 4 , 121 S . C t . 1 3 8 7 , 1 4 9 L . E d . 2 d 5 3 8 , 5 4 1 ( 2 0 0 1 ) , q u o t i n g W h i t e v . S t a t e , 650 S o . 2 d 5 3 8 , 5 4 1 ( A l a . C r i m . A p p . 1 9 9 4 ) , o v e r r u l e d on o t h e r g r o u n d s , Ex p a r t e R i v e r s , 669 S o . 2 d 2 3 9 ( A l a . C r i m . A p p . 1 9 9 5 ) . See a l s o , D a w s o n v . S t a t e , 675 S o . 2 d 8 9 7 , 900 ( A l a . C r i m . App. 1 9 9 5 ) , a f f ' d 675 S o . 2 d 905 ( A l a . 1 9 9 6 ) ( ' T h e erroneous admission of evidence that i s merely c u m u l a t i v e i s h a r m l e s s e r r o r . ' ) ; a n d Thompson v . State, 527 So. 2d 7 7 7 , 780 ( A l a . Crim. App. 9 into by 887 S o . 2 d 929 S o . 2 d 998 i n CR-08-1778 1988)('Testimony which may be apparently illegal upon admission may be rendered prejudicially i n n o c u o u s by subsequent or p r i o r l a w f u l t e s t i m o n y t o t h e same e f f e c t o r f r o m w h i c h t h e same f a c t s c a n b e inferred.')." 887 So. 2d at 971. Although altercation admitted the admission between into of Hinkle evidence, the and we testimony Caneshua cannot say of the was prior improperly that Hinkle was p r e j u d i c e d to the p o i n t of c a l l i n g i n t o q u e s t i o n the v a l i d i t y of his clear conviction. beyond returned prior killed a a We reasonable guilty verdict altercation. Caneshua. Hinkle shot her trying to even She G i v e me statements, i n t e n d e d t o murder the the that without and jury would the evidence d i s p u t e t h a t he testified (R. record, the that cheek, H i n k l e s a i d protect her?" dead anyway. doubt Kimyatta i n the "Fuck t h i s s h i t . reviewed H i n k l e d i d not that while i n custody, these have 92.) Officer had i t coming. She d i d me the e l e c t r i c c h a i r . " jury could Caneshua. 10 have the shot and (R. inferred before "What? Brown H i n k l e made t h e u n s o l i c i t e d have of moments to her, i t is You testified statement, wrong. 78-79.) that I was From Hinkle CR-08-1778 Given court's the erroneous altercation otherwise Crymes, the evidence did admission not So. record, 2d a at would have the trial court's Caneshua Henry. Chapman, s u p r a . court this was the 126. Therefore, and the no any So. of basis for trial, See, review of doubt that the regardless Monica at 210. of Henry's between H i n k l e 2d or our guilty" e r r o r on prior Hinkle. reasonable altercation 624 the of admission prior circuit of right a v e r d i c t of Greathouse, harmless, a the regarding M o r e o v e r , b a s e d on erroneous the trial, outcome substantial returned regarding at testimony i t i s " c l e a r beyond jury testimony of affect prejudice 630 presented See and also, the p a r t of the trial reversal exists as to claim. II. Hinkle reversible the also contends e r r o r when lesser-included that i t failed offenses the to trial court instruct available for the Specifically, Hinkle there to jury was ample manslaughter as evidence a support a lesser-included offense 11 of jury his attempted-murder charges. committed of a l l murder and contends that instruction murder and of for CR-08-1778 f i r s t - d e g r e e a s s a u l t as a l e s s e r - i n c l u d e d o f f e n s e of attempted murder. "A jury court instructions, reflect 779 trial has broad discretion providing those 584 court's oral (Ala. Crim. to give error Ingram v. S t a t e , ( A l a . C r i m . App. 1999), S o . 2 d 544 refusal constitute court's instructions accurately t h e law and t h e f a c t s i n t h e c a s e . " S o . 2 d 1 2 2 5 , 1258 State, i n formulating i t s when written are 1991). requested the charges charge, App. citing confusing or "'The charges are covered Raper v. does law.'" C r i m . App. 2002), 99 T o l e s v. S t a t e , quoting Stout trial misleading, are ( A l a . C r i m . App. 1988). (Ala. Crim. App. 2001), Court 887 S o . 2 d 929 explained: "'"A c o u r t may p r o p e r l y r e f u s e t o c h a r g e on a l e s s e r i n c l u d e d o f f e n s e o n l y when (1) i t i s c l e a r t o t h e j u d i c i a l m i n d t h a t t h e r e i s no e v i d e n c e t e n d i n g t o bring the offense w i t h i n the d e f i n i t i o n of the l e s s e r o f f e n s e , o r (2) t h e r e q u e s t e d c h a r g e w o u l d have a tendency t o m i s l e a d or c o n f u s e t h e j u r y . " ' W i l l i a m s v . S t a t e , 675 S o . 2 d 5 3 7 , 5 4 0 - 4 1 ( A l a . C r i m . A p p . 1 9 9 6 ) , q u o t i n g A n d e r s o n v . S t a t e , 507 S o . 2d 580, 582-83 ( A l a . C r i m . App. 1 9 8 7 ) . "'"Whether a crime constitutes a l e s s e r - i n c l u d e d o f f e n s e i s t o be d e t e r m i n e d 12 (Ala. 547 S o . 2 d 8 9 4 , 8 9 8 ¬ I n McNabb v . S t a t e , this of the 854 S o . 2 d 1 1 7 1 , 1 1 7 5 v. S t a t e , not i n the i n a p p l i c a b l e o r a b s t r a c t , o r a r e an i n c o r r e c t s t a t e m e n t applicable trial CR-08-1778 on a c a s e - b y - c a s e b a s i s . " A u c o i n v . S t a t e , 548 S o . 2 d 1 0 5 3 , 1 0 5 7 ( A l a . C r i m . App. 1 9 8 9 ) . " I n d e t e r m i n i n g w h e t h e r one o f f e n s e i s a l e s s e r included offense of the charged offense, the p o t e n t i a l r e l a t i o n s h i p of the two o f f e n s e s m u s t b e c o n s i d e r e d n o t o n l y i n the a b s t r a c t terms of the d e f i n i n g s t a t u t e s but must also ... in light of the p a r t i c u l a r f a c t s of each case." Ingram v. S t a t e , 570 S o . 2 d 8 3 5 , 837 ( A l a . C r i m . A p p . 1 9 9 0 ) ( c i t i n g E x p a r t e J o r d a n , 486 S o . 2 d 485, 488 ( A l a . 1 98 6 ) ; emphasis in original). See a l s o F a r m e r v . S t a t e , 565 So. 2 d 1238 ( A l a . C r i m . A p p . 1 9 9 0 ) . ' "Ford v. S t a t e , A p p . 19 9 2 ) . " 887 S o . 2 d a t 9 7 4 . states that respect to basis "[t]he an 612 So. 2d 1317, 1318 ( A l a . Crim. F u r t h e r m o r e , § 1 3 A - 1 - 9 ( b ) , A l a . Code 1975, court included shall offense not unless charge the there f o r a v e r d i c t c o n v i c t i n g the defendant jury with is a rational of the included offense." With these principles in mind, we turn to Hinkle's specific allegations. A. Hinkle his request included argues that to instruct offense the t r i a l court erred when i t d e n i e d t h e j u r y on m a n s l a u g h t e r a s a l e s s e r - of murder. Specifically, 13 Hinkle argues that CR-08-1778 sufficient c i r c u m s t a n t i a l evidence e x i s t e d to support s u c h an instruction. A person to a c t by a recognized for sudden the passion settled of passion 1975 even where of manslaughter a sudden indicating that provocation recognized 74 643 (Ala. Crim. caused by provocation t h e r e had been a r e a s o n a b l e (emphasis the defendant heat i s properly 73, i f "he o r s h e was m o v e d time t o c o o l and f o r r e a s o n t o r e a s s e r t i t s e l f . " A l a . Code that result heat of murder by l a w , and b e f o r e 13A-6-2(b), a i s not g u i l t y sudden of commits passion, refused heat added). of where an by l a w . H a r r i s o n I t i s well the k i l l i n g as instruction on there passion § was i s no evidence caused by a A p p . 2 0 0 1 ) we 580 S o . 2 d In Rogers v. S t a t e , ( A l a . C r i m . App. 1991). v. S t a t e , 819 S o . 2 d explained: "Alabama c o u r t s have, i n fact, recognized three legal provocations s u f f i c i e n t t o reduce murder t o m a n s l a u g h t e r : (1) when t h e a c c u s e d w i t n e s s e s h i s o r her spouse i n t h e a c t of a d u l t e r y ; (2) when t h e accused i s assaulted or faced with an imminent assault on h i m s e l f ; and (3) when the accused witnesses a n a s s a u l t on a f a m i l y member o r c l o s e relative." 819 So. 2d a t 662. The evidence trial court found of provocation, that Hinkle saying, 14 had f a i l e d t o "There's no present self-defense. CR-08-1778 There's that no of Court has that this heat this supports passion received was provocation" (R. the as f a r as opinion that caused her rise Hinkle or claims to to an passion. he and before and impulse led Hinkle has failed trial to Caneshua to on that Henry the by Caneshua one the t r i a l kill he court act also he Hinkle the gave lesser-included offense form by "From humble intentionally the in that led heat of provoked factors offers to sufficient of incident the but rise no the fatal Thus, Hinkle evidence into recognized correctly refused 15 i t i s my Caneshua Henry. impetuses B. stated, references shooting, was or caused happened" Henry presented that of shape, surrounding a t 26.) testimony 229.) "something the no [Hinkle] (R. provocation to that demonstrate Accordingly, jury show what way, court facts after as been Caneshua Henry, the kill explanation that to trial is either (Hinkle's brief, present i n any d i d not." that has intentional Ms. inference shoot that The testimony death, Hinkle give the there an 229.) testimony, ... killing in to i n s t r u c t manslaughter. at law. the CR-08-1778 Hinkle also reversible argues error when that the i t refused trial court to instruct f i r s t - d e g r e e a s s a u l t as a l e s s e r - i n c l u d e d o f f e n s e murder. Specifically, evidence support of "serious a conviction Initially, preserve held this physical State f o rt h i s the following discussion would give attempted contends injury" f o rfirst-degree the issue Hinkle argues that existed Hinkle Court's review. to the jury concerning the jury of attempted sufficient that would failed The t r i a l to court which i n s t r u c t i o n s i t lesser-included offenses murder: "THE COURT: Now, w i t h r e s p e c t to lesser included c h a r g e s , on t h e a t t e m p t e d murder c h a r g e i n v o l v i n g Ms. K i m y a t t a Henry, [defense counsel], would you l i k e t o be h e a r d on t h a t ? "[Defense c o u n s e l ] : W e l l , Judge, I t h i n k t h a t t a k i n g them i n e i t h e r o r d e r t h a t t h e r e w o u l d be l o g i c f o r i n c l u d i n g e i t h e r a t t e m p t e d m a n s l a u g h t e r -- "THE COURT: W e l l , t h e r e i s n o c h a r g e o f a t t e m p t e d manslaughter, so we're t a l k i n g about attempted murder o r p e r h a p s an a s s a u l t i n t h e second degree. F o r my h e a r i n g o f t h e e v i d e n c e , a s s a u l t i n t h e f i r s t degree would require serious p h y s i c a l i n j u r y , and w h i l e h e r i n j u r i e s w e r e d e f i n i t e l y -- I d o n ' t t h i n k they r i s e t o the l e v e l of serious p h y s i c a l i n j u r y , [the S t a t e ] , s o i f y o u a r e r e q u e s t i n g an a s s a u l t i n 16 on assault. that regarding committed of CR-08-1778 the second degree agree t o t h a t . "[Defense o n Ms. counsel]: Kimyatta Henry, I would Y e s , ma'am. "THE COURT: B u t now a t t e m p t e d than the attempted murder a p p l i c a b l e because t h e r e was unless there's something that I always a p o s s i b i l i t y . anything else other I don't think i s a c t u a l l y an i n j u r y , am m i s s i n g , w h i c h i s "[Defense counsel]: A s s a u l t i n t h e second degree. Judge, as a l e s s e r i n c l u d e d on t h e a t t e m p t e d murder charge? "THE COURT: Y e s , s i r . A l l r i g h t . That w o u l d be attempted murder and a s s a u l t i n t h e second degree. (R. 2 2 7 - 2 8 . ) Hinkle court's refusal During instruct the d i d not immediately object to instruct the discussion the jury following t h e j u r y on f i r s t - d e g r e e o f whether the t r i a l on a n y l e s s e r - i n c l u d e d exchange took to the t r i a l court assault. should o f f e n s e o f murder, place: "[Defense c o u n s e l ] : W e l l , i f you wouldn't c o n s i d e r criminally negligent homicide [ t o be a lesserincluded offense of murder], then manslaughter I would t h i n k c e r t a i n l y would be a p p r o p r i a t e . "THE COURT: B u t , [ d e f e n s e c o u n s e l ] , t h e r e h a s b e e n no t e s t i m o n y t h a t t h i s C o u r t h a s r e c e i v e d t h a t i n any way, s h a p e , o r f o r m s u p p o r t s t h a t t h i s was a n i n t e n t i o n a l a c t caused by p r o v o c a t i o n o r that t h i s was a reckless act. I mean I u n d e r s t a n d that t h e r e ' s l e g a l argument t o t h a t e f f e c t , b u t I have t o l o o k a t w h a t came i n o n t e s t i m o n y . A n d t h e S t a t e ' s w i t n e s s e s s a i d t h a t he w a l k e d up a n d he s h o t h e r a n d t h e n h e t u r n s t o t h e o t h e r y o u n g woman a n d s a y s , 17 CR-08-1778 'You w e r e t r y i n g t o w a r n h e r , ' o r s o m e t h i n g t o t h a t e f f e c t , i f t h e S t a t e ' s c a s e i s t o be b e l i e v e d . I h e a r d n o t h i n g t o i n d i c a t e t h a t i t was r e c k l e s s or nothing e v i d e n t i a r y wise, o r t h a t i t was heat of passion. "[Prosecutor], d i d you want t o say something? "[The S t a t e ] : Judge, I t h i n k t h e S t a t e c o n c u r s w i t h t h e C o u r t t h a t t h e r e was a b s o l u t e l y no testimony from the witness stand to suggest any type of provocation, any type of recklessness that would warrant any type of lesser included offense, s p e c i f i c a l l y i n t h e c h a r g e o f m u r d e r o f Ms. C a n e s h u a Henry. And I t h i n k the Court i s , of course, well v e r s e d a n d k n o w s t h e l a w on t h a t a n d h a s made a n "THE COURT: A n y t h i n g e l s e y o u w o u l d l i k e t o p u t on the record, [defense c o u n s e l ] , about that? I would b e m o r e t h a n h a p p y t o a l l o w y o u t o do t h a t a t t h i s time. " [ D e f e n s e c o u n s e l ] : O n l y my a lesser included offense. (R. 229-230; emphasis It on is well settled appeal are not 845 So. 2d 843, State, 773 So. 2d 1053, include added.) that preserved State, o b j e c t i o n to not 846 1054 issues for r a i s e d f o r the appellate first review. ( A l a . C r i m . App. ( A l a . C r i m . App. Woods v. 2 0 0 2 ) ; Meadows v. 2000). Further, "No p a r t y may a s s i g n a s e r r o r t h e c o u r t ' s g i v i n g or f a i l i n g to give a w r i t t e n i n s t r u c t i o n , or the g i v i n g o f an e r r o n e o u s , m i s l e a d i n g , i n c o m p l e t e , or otherwise improper o r a l charge, unless the party objects t h e r e t o before the j u r y r e t i r e s to consider 18 time CR-08-1778 i t s v e r d i c t , s t a t i n g t h e m a t t e r t o w h i c h he o r s h e o b j e c t s and t h e grounds o f t h e o b j e c t i o n . " R u l e 2 1 . 3 , A l a . R. C r i m . that Hinkle an objected P. Thus, i t appears from t h e only to the t r i a l court's refusal to give i n s t r u c t i o n f o r any l e s s e r - i n c l u d e d o f f e n s e for the t r i a l court's failure to include an o f murder, not i n s t r u c t i o n of f i r s t - d e g r e e a s s a u l t as a l e s s e r - i n c l u d e d o f f e n s e murder. court's on Because H i n k l e i s not preserved Moreover, even issue f o r appellate as i n refusing the serious deadly weapon raises review. properly preserved this offense of attempted murder. of assault degree assault person i f , with p h y s i c a l i n j u r y t o another person, physical i n j u r y t o any p e r s o n or dangerous Section i n the f i r s t A court weapon. § of a 13A-6-20(a) (1), A l a . defines " s e r i o u s p h y s i c a l i n j u r y " as " [ p ] h y s i c a l i n j u r y w h i c h creates substantial protracted risk 13A-1-2(14), b y means he 1975, a 1975. had trial r e v i e w , we c a n n o t s a y t h a t t h e t r i a l i n t e n t t o cause serious Code regarding a j u r y i n s t r u c t i o n on f i r s t - d e g r e e the crime causes for appellate i f Hinkle a lesser-included commits of attempted a t t e m p t e d - m u r d e r i n s t r u c t i o n , t h e i s s u e h e now appeal erred made n o o b j e c t i o n record of disfigurement, death, or A l a . Code which protracted 19 causes serious and impairment of health, or CR-08-1778 protracted loss or impairment of the function of any bodily organ." Hinkle sufficient contends t h a t the evidence to support a f i n d i n g presented at t r i a l of " s e r i o u s p h y s i c a l However, none of t h e e v i d e n c e p r e s e n t e d a t t r i a l injury." demonstrated that Kimyatta's i n j u r i e s constituted "serious physical as d e f i n e d by that § 13A-1-2(14). H i n k l e shot her At trial, Kimyatta right i n the cheek; p a r t of sinus area. shot until she Kimyatta felt the d i d not blood from K i m y a t t a d i d not have s u r g e r y and e f f e c t s from the s h o o t i n g . Kimyatta's and hospital r e l e a s e d from trial the evidence hospital to demonstrate injury" required denied assault to support A c c o r d i n g l y , the as wound on t h a t she the on t h a t t h e r e was a had her been face. long-term trial court the admitted to Thus, not of the sufficient first-degree d i d not e r r when i t jury first-degree on o f f e n s e of attempted 20 from "serious physical conviction to instruct a lesser-included was same d a y . the v i c t i m suffered Hinkle's request lodged i n t h a t she d e n i e d h a v i n g any v i s i t indicated the the bullet Additionally, medical records court p r o p e r l y determined assault. realize injury" testified e x i t e d t h r o u g h h e r neck, and t h e o t h e r p a r t remained her was murder. CR-08-1778 Based is on t h e f o r e g o i n g , due t o be t h e judgment of the t r i a l court affirmed. A P P L I C A T I O N FOR R E H E A R I N G OVERRULED; O P I N I O N OF MARCH 2 6 , 2010 WITHDRAWN; Wise, OPINION SUBSTITUTED; P.J., and Welch, Windom, 21 AFFIRMED. and Main, J J . , concur.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.