
    Ex parte Tavares BROWN. (In re Tavares Brown v. State of Alabama).
    1000427.
    Supreme Court of Alabama.
    June 1, 2001.
    
      J. Derek Drennan of Jaffe, Strickland & Drennan, P.C., Birmingham, for petitioner.
    Bill Pryor, atty. gen., and Joseph G.L. Marston III, asst. atty. gen., for respondent.
   HOUSTON, Justice.

Tavares Brown was convicted of murder, a violation of § 13A-6-2, Ala.Code 1975. He was sentenced to life imprisonment. The Court of Criminal Appeals, on October 20, 2000, affirmed the judgment of the trial court. Brown v. State (No. CR-99-1436), — So.2d - (Ala.Crim.App.2000) (table).

We granted Brown’s petition for certiorari review in order to consider two issues. The first issue is whether the trial court committed reversible error when it faked to give an instruction on the alibi defense. Brown made a written request for a charge on the alibi defense. We agree with the Court of Criminal Appeals that that written request was properly denied. After the trial court had denied that written request, Brown made an oral request for an alibi charge. The Court of Criminal Appeals held that the trial court did not err in failing to charge the jury on the alibi defense. Brown argues that the Court of Criminal Appeals’ ruling conflicts with Craig v. State, 526 So.2d 644 (Ala.Crim.App.1988).

In Craig, the Court of Criminal Appeals found reversible error in the trial court’s failure to instruct on the alibi defense when there was evidence to support the defense, and when the defendant made a proper objection to the absence of an instruction. In Craig, the defendant had “presented the testimony of many witnesses who supported his defense of alibi.” Craig at 645. Brown offered his mother’s testimony to support his alibi defense and objected after the trial court failed to include an instruction on alibi in its charge to the jury.

Brown argued to the Court of Criminal Appeals that, in response to his objection, the trial court should have instructed the jury on the alibi defense, despite the fact that it had denied the particular written charge Brown had requested, and that its failure to do so was error. The Court of Criminal Appeals did not address this argument in its unpublished memorandum. Rather, it restricted its review to the trial court’s refusal to give Brown’s improperly worded written request for an alibi instruction. By finding no error in the trial court’s denial of Brown’s oral request for a general instruction on the alibi defense, the memorandum of the Court of Criminal Appeals does conflict with Craig.

This Court has set out the circumstances in which a criminal defendant is entitled to jury instructions. In Ex parte Chavers, 361 So.2d 1106, 1107 (Ala.1978), this Court stated:

“[0]ur decisions are to the effect that every accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility. Burns v. State, 229 Ala. 68, 166 So. 561 (1934).”

See also Ex parte McCall 594 So.2d 628 (Ala.1991).

Brown presented alibi evidence in the form of his mother’s testimony. Although this testimony was not as compelling as that offered by the defendant in Craig, it meets the Chavers test; therefore, the trial court should have instructed the jury on the law of alibi. Its failure to do so was reversible error. Ex parte McCall, 594 So.2d 628 (Ala.1991), and Matkins v. State, 497 So.2d 201 (Ala.1986).

Because the failure to instruct on the defense of alibi requires a reversal, we need not address the second issue on which we granted certiorari review.

We note that, as Justice Brown states in her dissent, Rule 21, Ala. R.Crim. P., was amended effective August 1, 1997. As a part of the amendment, what had been Rule 21.2 became Rule 21.3. The procedure for objecting to the trial court’s “giving of an erroneous, misleading, incomplete, or otherwise improper oral charge,” although now found in Rule 21.3 instead of Rule 21.2, was not changed by that amendment. Brown’s objection to the trial judge’s failure to instruct the jury in its oral charge on the alibi defense complied with Rule 21.3. Brown properly preserved this issue for our review.

The judgment of the Court of Criminal Appeals is reversed, and the case is remanded.

REVERSED AND REMANDED.

MOORE, C.J., and SEE, LYONS, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

BROWN and STUART, JJ., dissent.

BROWN, Justice

(dissenting).

I respectfully dissent. In the Court of Criminal Appeals, Tavares Brown argued that the trial court erred by failing to give jurors the following alibi instruction he had requested in writing:

“I charge you that the Defendant in this case has introduced evidence tending to show that he was not present at the time and place of the commission of the alleged offense for which he is here on trial. If, after consideration of all the evidence, you have a reasonable doubt that the Defendant was present at the time the crime was committed, he is entitled to an acquittal.”

(Emphasis added.) The Court of Criminal Appeals held that because the alibi instruction requested by Brown asserted the existence of particular facts, the instruction invaded the province of the jury and was an incorrect statement of the law and, consequently, that the trial court properly denied it. See White v. State, 410 So.2d 135, 137 (Ala.Crim.App.1981) (“Requested instructions that the evidence ‘tends’ to show certain matters are properly refused as invasive of the province of the jury.”). See also Goodwin v. State, 516 So.2d 818, 819-20 (Ala.Crim.App.1986), writ quashed, 516 So.2d 821 (Ala.1987).

Today, despite well-settled law that a trial court does not err in denying a jury instruction that is misleading or that contains an incorrect statement of the law— see, e.g., Booker v. State, 645 So.2d 355, 358 (Ala.Crim.App.1994); and Pinkard v. State, 415 So.2d 1220 (Ala.Crim.App.1982) — this Court effectively holds that where the defendant presents alibi evidence and then requests an alibi instruction that contains an incorrect statement of law, the trial court must formulate a proper alibi instruction and then give that proper instruction to the jury. I think this places an undue burden upon the trial court, and I believe it is unfair to hold a trial court in error for refusing an incorrect instruction and then not coming up with a proper instruction on its own.

In reversing the judgment of the Court of Criminal Appeals, this Court relies on Craig v. State, 526 So.2d 644 (Ala.Crim.App.1988), which held that where alibi evidence was presented and the defendant objected to the court’s omission of an alibi instruction from its oral charge, the court erred to reversal by failing to supplement its oral charge with a proper alibi instruction — even though the defendant never submitted a particular requested alibi instruction to the trial court. The Court of Criminal Appeals stated in Craig: “By defense counsel’s proper objection to the omission of an instruction on the defense of alibi, the burden of devising proper jury instructions was put upon the trial court.” 526 So.2d at 645. Notwithstanding this holding in Craig, I cannot see the justification for treating an alibi instruction as sui generis. It is generally not the trial court’s duty to formulate jury instructions for a party. I question why a request for an alibi instruction should be treated differently from requests for other kinds of jury instructions.

Moreover, I believe Craig would be decided differently today. In placing the burden upon the trial court to devise a proper alibi instruction, the Court of Criminal Appeals in Craig relied on this Court’s holding in Matkins v. State, 497 So.2d 201 (Ala.1986), which, like Craig, was decided before the latest version of Rule 21, Ala. R.Crim.P., went into effect. When Craig and Matkins were decided, the Alabama Rules of Criminal Procedure did not expressly require that requested additional instructions be submitted to the trial court in writing, and a defendant had less of a burden to frame a request for a jury instruction in a manner sufficient to preserve the issue for appellate review. However, the rule has changed since Craig and Matkins were decided. Effective August 1997 (well before Brown’s trial), Rule 21 was amended to provide that when the trial court does not give a requested charge, or when the trial court omits a desired charge, a defendant must seek to remedy the omission by submitting a proper instruction in writing or, where the additional instruction is taken from pattern jury instructions, by referring the trial court to the specific number and title of the pattern jury instruction. See Rule 21.2, Ala.R.Crim.P. (“Additional instructions shall be submitted in writing, except that with respect to any additional instructions taken from Alabama Pattern Jury Instructions — Criminal, it shall be sufficient to identity the instructions on the record by reference to the number and title of the pattern jury instruction.”).

The amendment to Rule 21, Ala.R.Crim. P., shifts to the objecting party the burden of devising proper jury instructions. Under Rule 21.2, then, when the trial court refused Brown’s requested alibi instruction (which contained incorrect statements of law) and did not formulate its own alibi instruction, it was Brown’s duty to submit a proper alibi instruction in writing or, if the pattern jury instructions contained an alibi instruction, to refer the trial court to the specific number and title of that instruction. Because the alibi instruction submitted by Brown contained incorrect statements of law and because Brown did not comply with the requirements of Rule 21.2, Ala.R.Crim.P., after the trial court failed to give his requested instruction, I would affirm the judgment of the Court of Criminal Appeals.

STUART, J., concurs.  