Harris v. State

TAYLOR, Presiding Judge

(dissenting).

I respectfully dissent from the unpublished memorandum in this case.

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

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