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Barnett v. State - 783 So. 2d 927 (Ala. Crim. App. 2000)

Rule:

Felonious assaults that result in the victim's death merge with the homicide and therefore cannot serve as an underlying felony for purposes of the felony murder rule.

Facts:

Appellant Andrae Barnett and victim Kevin Moses had an altercation. According to the witness, appellant had a garden hoe in his hands and the victim was backing away from appellant. As he backed away, the victim tripped over, fell on his stomach, and was hit in the back of the head with the hoe by appellant. The victim died as a result of the blow to the head. Subsequently, appellant was convicted of felony murder. On appeal, appellant asserted that the trial court erred by allowing him to be charged with felony-murder when the underlying felony was assault, because assault was an essential part of the homicide itself. The State argued that the issue was not properly preserved for review.

Issue:

  1. Was the issue raised by appellant properly preserved for review?
  2. Could felonious assaults serve as the underlying felony in a felony murder charge?

Answer:

1) Yes. 2) No.

Conclusion:

The Court held that the present issue raised the question on whether there was a jurisdictional defect in the indictment, and according to the Court, it can review a jurisdictional issue at any time, even if the issue was not raised by the appellant. As to the substantive part of the case, the Court determined the legislature did not intend for felonious assaults to serve as the underlying felony in a felony murder charge. Because the felonious assault that resulted in the victim's death merged with the homicide, the assault could not serve as an underlying felony for purposes of the felony murder rule. Because the indictment failed to charge a valid offense, the indictment was void and the trial court was without jurisdiction to enter a judgment.

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