Ferrera v. State

709 So. 2d 507, 1997 Ala. Crim. App. LEXIS 408, 1997 WL 506729
CourtCourt of Criminal Appeals of Alabama
DecidedAugust 22, 1997
DocketCR-96-360
StatusPublished

This text of 709 So. 2d 507 (Ferrera v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ferrera v. State, 709 So. 2d 507, 1997 Ala. Crim. App. LEXIS 408, 1997 WL 506729 (Ala. Ct. App. 1997).

Opinion

BROWN, Judge.

The appellant, Irene Elizabeth Ferrera, was convicted of intentional murder, a violation of § 13A-6-2, Code of Alabama 1975. She was sentenced to life imprisonment.

The appellant’s sole contention on appeal is that the trial court erred in refusing to charge the jury on manslaughter as a lesser-included offense of murder. Manslaughter is defined in § 13A-6-3, Code of Alabama 1975, as follows:

“(a) A person commits the crime of manslaughter if:
“(1) He recklessly causes the death of another person, or
“(2) He causes the death of another person under circumstances that would constitute murder under Section 13A-6-2; except, that he causes the death due [508]*508to a sudden heat of passion caused by provocation recognized by law, and before a reasonable time for the passion to cool and for reason to reassert itself.”

The term “recklessly” is defined, in pertinent part, in § 13A-2-2(3), as follows:

“A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”

The state presented evidence tending to show the following. In the late hours of June 7, 1995, the bloody, nude body of the victim, Kenneth Lee Kindred, was found lying in the living room of his home. An autopsy revealed that Kindred had suffered approximately 15 blunt-force injuries to his head, and that he had also been stabbed in his chest and in his abdomen. The stab wound to Kindred’s chest had pierced his heart. Kindred did not have any defensive injuries on his hands. Kindred died as a result of multiple blunt- and sharp-force injuries.

Blood found on the ceiling and various items in the living room indicated that an intense struggle had taken place. An envelope found near Kindred’s body bore a bloody footprint, which was later determined to match the known footprint of the appellant.

Aubrey Hughes, a friend and former boyfriend of the appellant’s, testified that the appellant often came by to see him at the garage where he worked. He testified that on one such occasion, the appellant, who was accompanied by her husband, James Bailey, told him that she and Bailey had killed a retired fireman. Hughes testified that the appellant told him that she had met the victim through a dating service, through which prostitutes were supplied to customers. The appellant told Hughes that she had been with the victim on a couple of occasions. Hughes testified that the appellant told him that on the night of the incident, she had gone to the victim’s home to “turn a trick.” Bailey went with her. The appellant explained to Hughes that she stabbed the victim with a knife when the victim grabbed James Bailey by the shirt. The appellant told Hughes that she had not reported the incident to the police because she was afraid.

On September 8, 1995, Matthew Thompson, a Mobile police officer, took an audio taped statement from the appellant, which was admitted into evidence at trial. According to the appellant, on June 7, 1995, the dating service that she worked for telephoned her and asked her to contact Kindred. When the appellant telephoned Kindred he asked her to come to his house around midnight and to bring some beer with her.

The appellant stated that Bailey thought that she should get more than her usual $150 from Kindred. She stated that Bailey suggested to her that he could knock Kindred unconscious and they could then take more money. The appellant told the police that she knew where Kindred kept his money. The appellant and Bailey drove in the appellant’s automobile to Kindred’s home. The appellant stated that on the way to Kindred’s home, Bailey told her that he would kill Kindred, if it became necessary. She claimed that she asked Bailey not to kill Kindred.

When the appellant arrived at Kindred’s home, she observed an unfamiliar car in Kindred’s driveway. The appellant then drove to a service station, where she telephoned Kindred and asked him about the vehicle parked in his driveway. Kindred told the appellant that the vehicle belonged to his daughter. The appellant purchased some beer and returned to Kindred’s home.

When the appellant and Bailey arrived at Kindred’s home, the appellant went into the house, and Bailey remained in the vehicle. Kindred was dressed in a robe and sitting in a recliner, waiting for the appellant. He was positioned with his back to the front door. The appellant placed the beer in the refrigerator and got undressed. The appellant stated that the date then “progressed.”

[509]*509The appellant told the police that while she was kneeling in front of Kindred, she heard the front door open. The appellant thought that Kindred had also heard the noise, so she distracted him. She said that she was very frightened. Bailey entered the living room and began to hit Kindred on the back of the head with a billyclub. The appellant told the police that both she and Kindred were shocked.

The appellant stated that Bailey continued to hit Kindred, but that Kindred did not lose consciousness. While Bailey was hitting Kindred, the appellant got dressed. She stated that during the struggle, Kindred yelled for someone named “Amber.” The appellant said that around that same time, she thought she heard a door opening. She went down the hall to investigate. When she opened the bedroom door, she saw a woman lying on the bed, with her back to the door.1

The appellant returned to the living room. Bailey continued to hit Kindred, but Kindred still did not lose consciousness. The appellant stated that Kindred grabbed Bailey’s shirt. The appellant told the police that Kindred’s actions frightened her because, she said, she was afraid that the woman that she had seen in the bedroom was going to come out and discover them. The appellant pulled out of her purse a knife that she kept for protection. She told the police that she thought that if she stabbed Kindred, he would think about the pain and “hush.” The appellant said that she stabbed Kindred in the chest below his left nipple and he fell over the recliner.

The appellant stated that after she stabbed Kindred, she threw the knife down and went into the bathroom. She said that when she came out of the bathroom, Bailey was holding the knife. The appellant denied any knowledge of a second stab wound. The appellant told the police that she and Bailey then left Kindred’s home without taking anything. She maintained that when they left, Kindred was still alive. The appellant suggested to the police that Kindred’s wife “finished off’ Kindred after she and Bailey left the house.

The appellant and Bailey returned to their apartment, where she took a shower. The appellant stated that she and Bailey threw the knife into the sewer, and that they burned her clothes, Bailey’s clothes, and the billy-club in a barrel. She claimed that she never intended to hurt or to kill Kindred.

James Bailey also gave a statement to the police. According to the officer who took the statement, Bailey admitted that robbing Kindred was his idea, but he claimed that the appellant agreed to the plan.

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Related

Jones v. State
656 So. 2d 414 (Court of Criminal Appeals of Alabama, 1994)
Bunn v. State
581 So. 2d 559 (Court of Criminal Appeals of Alabama, 1991)
Smith v. State
588 So. 2d 561 (Court of Criminal Appeals of Alabama, 1991)
Ex Parte Stork
475 So. 2d 623 (Supreme Court of Alabama, 1985)
Henderson v. State
650 So. 2d 532 (Court of Criminal Appeals of Alabama, 1994)

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Bluebook (online)
709 So. 2d 507, 1997 Ala. Crim. App. LEXIS 408, 1997 WL 506729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferrera-v-state-alacrimapp-1997.