Mancuso v. State

853 So. 2d 1024, 2002 Ala. Crim. App. LEXIS 111, 2002 WL 1142010
CourtCourt of Criminal Appeals of Alabama
DecidedMay 31, 2002
DocketCR-01-0283
StatusPublished

This text of 853 So. 2d 1024 (Mancuso 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
Mancuso v. State, 853 So. 2d 1024, 2002 Ala. Crim. App. LEXIS 111, 2002 WL 1142010 (Ala. Ct. App. 2002).

Opinion

COBB, Judge.

On September 11, 2001, Clinton J. Man-cuso was convicted of domestic violence in [1025]*1025the third degree, a violation of § 13A-6-132, Ala.Code 1975. On October 25, 2001, the trial court sentenced him to serve 12 months in the Baldwin County jail and ordered him to pay a $250 fíne pursuant to the Alabama Crime Victims Assessment Act. This appeal followed.

We note that effective July 1, 2000, the crimes of domestic violence in the first, second, and third degrees were added to the Ala.Code 1975. See §§ 13A-6-130, -131, and -132, Ala.Code 1975. It appears from our research that the issues presented by Mancuso with regard to his third-degree domestic violence conviction have yet to be addressed by any Alabama cases. Additionally, our research has failed to uncover any cases involving the offense established by § 13A-6-132, AIa.Code 1975, in general.

On August 14, 2000, Mancuso and his wife Norshay, who was pregnant at the time, were arguing in the kitchen of their home. Mancuso told Norshay that he was leaving her and moving back to Texas. After a verbal exchange, Norshay took a shower and then went into the kitchen where Mancuso was using a large kitchen knife to cut onions. They began arguing again, and Mancuso cut Norshay on the hand with the knife. After he cut her, Mancuso offered to take Norshay to the hospital, but he left when she told him she was going to call the police. Norshay telephoned the police and was transported to the hospital; she received stitches to close the cut on her hand. She was kept in the hospital for observation because she was experiencing stomach pains. Mancuso was arrested later at his father’s house.

There is conflicting testimony as to how Norshay was cut with the knife. Norshay testified:

“[Mancuso] walks at me with the knife like this. And he says, ‘I’ll just kill you and the baby.’ That’s when he proceeded to go to my throat, twice.
“And when he went down toward my stomach, and I’m stepping back — the second time, he went toward my stomach with the knife, which was another slashing motion, I put my hand in front of my stomach to protect the baby. And when I did, the knife hit my hand instead of my stomach.”

(R. 46.) Mancuso acknowledged cutting Norshay, but testified that it was an accident. He testified that he tends to “talk with [his] hands.” (R. 121.) He further testified that he did not slash at her with the knife and he did not realize she had been cut until he saw her hand bleeding.

Mancuso asserts two issues on appeal, and we address each in turn.

I.

First, Mancuso argues that the trial court erroneously denied his request for a more specific verdict form. Specifically, Mancuso contends that the verdict form was inadequate because it contained only a place for a finding of guilty or not guilty, but did not require that the jury specify the factual manner in which they found the offense was committed. We disagree.

In his objection to the jury form, Man-cuso stated:

“[We do not have any objections to the jury] charge, Your Honor. But we object to the verdict form on the ground that it lumps the offenses which you consider lesser included offenses of assault third, menacing, and reckless endangerment into one count, so that if the jury were to return a verdict of guilty of the lesser included offense, which you characterized on the verdict form as domestic violence third, it would be impossible for anybody to know whether or not they had found Mr. Mancuso guilty of domestic violence third on the basis of [1026]*1026an assault third, of either variety, with which you instructed them, that is, assault third, reckless or assault third, criminal negligence, or menacing, or reckless endangerment

(R. 147-48.) The trial judge overruled the objection.

Mancuso was convicted of third-degree domestic violence as a lesser-included offense of second-degree domestic violence, § 13A-6-131, Ala.Code 1975. Section 13A-6-132(a), Ala.Code 1975, provides in relevant part:

“A person commits domestic violence in the third degree if the person commits the crime of assault in the third degree pursuant to Section 13A-6-22; the crime of menacing pursuant to Section 13A-6-23; the crime of reckless endangerment pursuant to Section 13A-6-24; the crime of criminal coercion pursuant to Section 13A-6-25; or the crime of harassment pursuant to subsection (a) of Section 13A-11-8; and the victim is a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating or engagement relationship with the defendant.”

Section 15-17-3, Ala.Code 1975, provides:

“When the intent with which, the mode in or the means by which an act is done is essential to the commission of the offense and such offense may be committed with different intents, in different modes or by different means, if the jury is satisfied that the act was committed with one of the intents, in one of the modes or by either of the means charged, it is sufficient; and the jury must convict, although uncertain as to which of the intents charged existed, in which mode or by which of the means charged such act was committed.”

In Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), Justice Scalia, concurring in the judgment, addressed a similar issue; he stated: “As the plurality observes, it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission.” Schad v. Arizona, 501 U.S. 624, 649, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (Scalia, J., concurring in part and concurring in the judgment).

In Perkins v. State, 808 So.2d 1041 (Ala.Crim.App.1999), aff'd, 808 So.2d 1143 (Ala.2001), this Court stated:

“ ‘ “If a statute describes a single offense which may be committed in more than one factual manner, or by way of different acts, jury unanimity is not necessary as to the means by which it is committed, where the acts are conceptually similar or not repugnant to each other.”’ Knotts [v. State, 686 So.2d 431, 461 (Ala.Crim.App.1995) ], quoting 23A C.J.S. Criminal Law § 1398 (1989).”

808 So.2d at 1059. In Harris v. State, 632 So.2d 503 (Ala.Crim.App.1992), aff'd, 632 So.2d 543 (Ala.1993), aff'd, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995), this Court stated: “‘Our cases reflect a long-established rule of the criminal law that an indictment need not specify which overt act, among several named, was the means by which a crime was committed.’ ” 632 So.2d at 514 (quoting Schad v. Arizona, 501 U.S. 624, 631, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991)).

“The appellant argues that because the trial court charged the jurors that all 12 must agree as to one of three possible verdicts — guilty of the capital offense, guilty of lesser-included offense, or not guilty — the trial court’s instructions were improper.

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Related

Schad v. Arizona
501 U.S. 624 (Supreme Court, 1991)
Harris v. Alabama
513 U.S. 504 (Supreme Court, 1995)
Ex Parte Harris
632 So. 2d 543 (Supreme Court of Alabama, 1993)
Harris v. State
632 So. 2d 503 (Court of Criminal Appeals of Alabama, 1992)
Knotts v. State
686 So. 2d 431 (Court of Criminal Appeals of Alabama, 1995)
Bankston v. State
358 So. 2d 1040 (Supreme Court of Alabama, 1978)
Powe v. State
597 So. 2d 721 (Supreme Court of Alabama, 1991)
Pennington v. State
421 So. 2d 1361 (Court of Criminal Appeals of Alabama, 1982)
Ex Parte Faircloth
471 So. 2d 493 (Supreme Court of Alabama, 1985)
Faircloth v. State
471 So. 2d 485 (Court of Criminal Appeals of Alabama, 1984)
Davis v. State
598 So. 2d 1054 (Court of Criminal Appeals of Alabama, 1992)
Ex Parte Perkins
808 So. 2d 1143 (Supreme Court of Alabama, 2001)
Perkins v. State
808 So. 2d 1041 (Court of Criminal Appeals of Alabama, 1999)
Ex Parte Woodall
730 So. 2d 652 (Supreme Court of Alabama, 1998)

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Bluebook (online)
853 So. 2d 1024, 2002 Ala. Crim. App. LEXIS 111, 2002 WL 1142010, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mancuso-v-state-alacrimapp-2002.