CourtListener 10337157•Jerry Martin Honeycutt v. State of Alabama (Appeal from Fayette Circuit Court: CC-21-431, CC-21-432, CC-21-433, and CC-21-434)
Jerry Martin Honeycutt v. State of Alabama (Appeal from Fayette Circuit Court: CC-21-431, CC-21-432, CC-21-433, and CC-21-434)
CourtListener 10337157Alacrimapp21 févr. 2025
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Rel: February 21, 2025
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2024-2025
_________________________
CR-2023-0435
_________________________
Jerry Martin Honeycutt
v.
State of Alabama
Appeal from Fayette Circuit Court
(CC-21-431, CC-21-432, CC-21-433, and CC-21-434)
COLE, Judge.
Jerry Martin Honeycutt appeals his convictions for one count of
attempted murder, a violation of § 13A-4-2 and § 13A-6-2, Ala. Code 1975;
two counts of first-degree burglary, violations of § 13A-7-5(a)(2) and (3),
Ala. Code 1975; and one count of illegally possessing a firearm because
he falls within the class of certain persons who are forbidden to possess
CR-2023-0435
a firearm, a violation of § 13A-11-72, Ala. Code 1975, and his resulting
consecutive sentences of life imprisonment without the possibility of
parole for his attempted-murder conviction and each of his first-degree-
burglary convictions and life imprisonment for his certain-persons-
forbidden-to-possess-a-firearm conviction.
Facts and Procedural History
On March 26, 2021, Debra Pinion, Christopher Finch, Jonathan
Frost, and Misti Freeman were present at Pinion's residence located in
Fayette County. Honeycutt knew Pinion because Honeycutt's son, Henry
Honeycutt, previously had been in a dating relationship with Pinion.
Around 11:00 a.m., Honeycutt brought some food to Pinion's residence.
Honeycutt and Finch had a friendly interaction before Finch and
Freeman left Pinion's home shortly after Honeycutt's arrival. Thereafter,
Honeycutt "lick[ed] his lips" while looking at Pinion, which made Pinion
feel uncomfortable and scared. Pinion told Honeycutt that he could not
keep coming to her home because she was no longer dating Honeycutt's
son, Henry. At some point, Honeycutt left Pinion's home.
Around 8:00 p.m., Finch and Freeman arrived back at Pinion's
home; Frost and Pinion were already present. Between 15 and 45
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minutes after Finch and Freeman arrived at Pinion's home, Honeycutt
knocked on Pinion's door. Pinion, knowing it was Honeycutt, told the
others to say that she was not home and went to her bedroom. However,
within a minute, Pinion heard a "commotion." Freeman answered the
door and told Honeycutt that Pinion was not home. Honeycutt responded
that he had heard Pinion, and he entered Pinion's home "push[ing] past"
Freeman. Freeman followed Honeycutt and saw Honeycutt raise his gun
at Finch. Thereafter, Freeman heard Honeycutt say Finch's name and
"[d]ie" before seeing Honeycutt pull "the trigger three times." (R. 182-
183, 229.) Honeycutt's gun did not fire. Finch "jumped up and tackled
[Honeycutt] in the living room," and a physical altercation ensued over
the gun. (R. 186.) Pinion, upon exiting the bedroom, saw Finch "on top
of" Honeycutt struggling over the gun.
Finch testified that Honeycutt pointed the gun at him, that
Honeycutt threatened to kill him, and that Honeycutt "squeeze[d] the
trigger" three times. (R. 125, 127, 146.) A physical altercation ensued
over the gun, and the altercation continued after Honeycutt pulled a
knife from his pants. Pinion did not see Honeycutt pull the knife, but she
recognized the knife as Honeycutt's from her previous times fishing with
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Honeycutt. At approximately 9:00 p.m., after exiting Pinion's home as
the physical altercation between Honeycutt and Finch began, Freeman
called emergency 911. Finch was frantic after the altercation and
proceeded outside where he shot the gun once or twice in the air.
Officer Randall Kelley, with the Berry Police Department, was the
first officer to arrive on scene. He observed Finch in the doorway of
Pinion's home holding a gun in his right hand and an unknown object
(later determined to be a knife) in his left hand. Upon Officer Kelley's
demand, Finch placed the gun and the knife in a chair outside the front
door. Officer Kelley stated that, when he arrived, Honeycutt was lying
on the floor with "a lot of facial trauma," possibly a broken nose, and some
cuts. (R. 241-242, 244, 275.) While Finch was writing his witness
statement, Officer Kelley noticed that Finch was bleeding from a small
cut on his hand and provided some basic first aid. Finch told Officer
Kelley that Frost was also present during the incident. Frost, who was
only about 100 yards away in Freeman's vehicle, also provided a
statement. Both Finch's and Frost's statements to Officer Kelley were
consistent with each other. Finally, Officer Kelley located a spent shell
casing near Honeycutt's vehicle in the driveway, which was the same
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caliber as the other projectiles in Honeycutt's gun but was a different
brand.
Deputy Todd Key, with the Fayette County Sheriff's Office, testified
that he provided medical aid to Honeycutt until medical assistance
arrived. Additionally, the State introduced into evidence Honeycutt's
prior conviction for second-degree burglary. Thereafter, the State rested
its case, and Honeycutt moved for a judgment of acquittal, which was
denied by the trial court.
In Honeycutt's defense, Deputy Tanner Burleson testified that both
Pinion and Freeman had told him that "they believed [Finch] had taken
some pills earlier that day" but were not sure what they were. (R. 352,
362.) Chet Smith, Honeycutt's neighbor, testified that he had never seen
Honeycutt with a gun or a knife. Finally, Ryan Clark, Honeycutt's long-
time friend, testified that he also had never seen Honeycutt with a gun
or knife.
Thereafter, the jury returned a guilty verdict as to each count
submitted: one count of attempted murder, two counts of first-degree
burglary, and one count of certain persons forbidden to possess a firearm.
On August 3, 2023, Honeycutt's sentencing hearing was held. Honeycutt
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was sentenced under the Habitual Felony Offender Act, § 13A-5-9, Ala.
Code 1975, to consecutive sentences of life without the possibility of
parole for his attempted-murder conviction and for each of his first-
degree-burglary convictions and to life imprisonment for his certain-
persons-forbidden-to-possess-a-firearm conviction. 1 This appeal followed.
Discussion
On appeal, Honeycutt raises three issues: (1) whether his
convictions for two counts of first-degree burglary violate the Double
Jeopardy Clause; (2) whether he received ineffective assistance of counsel
at trial; and (3) whether there was sufficient evidence to sustain his
convictions.
I. Double Jeopardy
On appeal, Honeycutt argues that his convictions for two counts of
first-degree burglary based on the same event violate the Double
Jeopardy Clause of the Fifth Amendment to the United States
1The State provided reasonable notice to Honeycutt to invoke the
Habitual Felony Offender Act and gave notice of at least eight prior
felony convictions. (C. 49-50.) At the sentencing hearing, six of
Honeycutt's prior felony convictions were admitted for the trial court's
consideration. (Sent. R. 4-9.)
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Constitution. (Honeycutt's brief, pp. 12-15.) The State concedes that
these convictions violate the Double Jeopardy Clause. (State's brief, pp.
12-14.)
While this issue was not raised in the trial court, whether
Honeycutt's convictions violate double-jeopardy principles is "a
jurisdictional matter that cannot be waived." See Garrison v. State, 344
So. 3d 363, 365 (Ala. Crim. App. 2021). Therefore, this issue is properly
before this Court.
On September 24, 2021, in case no. CC-21-432, Honeycutt was
indicted for one count of first-degree burglary. The indictment read as
follows:
"The Grand Jury of said County charge that, before the
finding of this indictment, Jerry Martin Honeycutt, whose
name is otherwise unknown to the Grand Jury, did, on or
about March 26, 2021, knowingly and unlawfully enter or
remain unlawfully in a dwelling of another, to-wit: Debra
Darlene Pinion, with intent to commit a crime therein, to-wit:
Murder and/or Assault, in any degree, and while in effecting
entry or while in the dwelling or in immediate flight
therefrom, the said Jerry Martin Honeycutt, did cause
physical injury to another person, to-wit: Misti Freeman
and/or Christopher Finch, who was not a participant in the
said crime, in violation of § 13A-7-5(a)(2) of the Code of
Alabama."
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(Supp. C. 86-87.) Additionally, in case no. CC-21-433, Honeycutt was
indicted for one count of first-degree burglary. That indictment read as
follows:
"The Grand Jury of said County charge that, before the
finding of this indictment, Jerry Martin Honeycutt, whose
name is otherwise unknown to the Grand Jury, did knowingly
and unlawfully enter or remain unlawfully in a dwelling of
another, to-wit: Debra Darlene Pinion, with intent to commit
a crime therein, to-wit: Murder and/or Assault, in any degree,
and the said Jerry Martin Honeycutt, while in effecting entry,
was armed with a deadly weapon or dangerous instrument,
or, while in the dwelling or in immediate flight therefrom, the
said Jerry Martin Honeycutt, did use or threaten the
immediate use of a deadly weapon or dangerous instrument,
to-wit: one (1) firearm and/or one (1) knife, a better description
of which is otherwise unknown to the Grand Jury, in violation
of § 13A-7-5(a)(3) of the Code of Alabama."
(Supp. C. 89-90.) Honeycutt's indictments follow the language of
Alabama's first-degree-burglary statute. See § 13A-7-5(a)(2) and (3), Ala.
Code 1975.
It is undisputed that Honeycutt's indictments describe alternative
methods of proving the same offense. It is well settled that
"a defendant cannot be convicted of multiple counts of
violating the same statute arising out of a single event. See,
e.g., King v. State, 574 So. 2d 921, 929-30 (Ala. Crim. App.
1990) (holding that 'the appellant could constitutionally only
be convicted of one count instead of the four counts of which
he was convicted' because it was 'clear that only one act took
place.')."
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Garrison, 344 So. 3d at 367.
In Garrison, this Court held:
"Moreover, this Court has specifically held that a defendant
cannot be convicted of multiple counts of first-degree burglary
arising out of a single event. See Birdsong v. State, 267 So.
3d 343, 351 (Ala. Crim. App. 2017) (holding that a defendant
cannot be convicted of three counts of first-degree burglary
based on a single event), and Childs v. State, 238 So. 3d 90,
92 (Ala. Crim. App. 2017) (holding that a defendant cannot be
convicted of two counts of first-degree burglary for the same
offense)."
344 So. 3d at 367. Thus, Honeycutt's two convictions for first-degree
burglary arising from one event violate Honeycutt's right to be free from
double jeopardy.
As a result, this case must be remanded to the trial court for that
court to vacate one of Honeycutt's convictions for first-degree burglary.
II. Ineffective Assistance of Counsel
Honeycutt next argues that he received ineffective assistance of
counsel at his trial because, he says: (1) his trial counsel failed to raise a
double-jeopardy claim as to his convictions for first-degree burglary; (2)
his trial counsel failed to advance his defense at trial; (3) his trial counsel
failed to impeach the State's witnesses with prior convictions; and (4) his
trial counsel had conflicting loyalties because counsel had represented
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Pinion in previous criminal cases. (Honeycutt's brief, pp. 15-21.) The
State argues that Honeycutt failed to preserve this issue for appellate
review. (State's brief, pp. 14-15.) We agree with the State.
"It is well settled that ineffective-assistance-of-counsel claims
cannot be presented on direct appeal when they have not been
first presented to the trial court. Montgomery v. State, 781
So. 2d 1007 (Ala. Crim. App. 2000). Thus, ' "[a]n ineffective-
assistance-of-counsel claim must be presented in a new trial
motion filed before the 30-day jurisdictional time limit set by
Rule 24.1(b), Ala. R. Crim. P., expires, in order for that claim
to be properly preserved for review upon direct appeal." ' 781
So. 2d at 1010, quoting Ex parte Ingram, 675 So. 2d 863, 865
(Ala. 1996)."
Shouldis v. State, 953 So. 2d 1275, 1285 (Ala. Crim. App. 2006); see also
Thomas v. State, 302 So. 3d 720, 731 (Ala. Crim. App. 2019).
At no point did Honeycutt present his ineffective-assistance-of-
counsel claims to the trial court. Thus, Honeycutt failed to preserve this
issue for appellate review. Honeycutt is due no relief on this issue.
III. Sufficiency of the Evidence
Finally, Honeycutt argues that the evidence was insufficient to
support his convictions for attempted murder and first-degree burglary. 2
2It does not appear that Honeycutt is challenging the sufficiency of
the evidence of his certain-persons-forbidden-to-possess-a-firearm
conviction. Regardless, the evidence presented at trial was sufficient to
support that conviction, and he is due no relief.
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(Honeycutt's brief, pp. 22-28.) Specifically, as to his first-degree-burglary
convictions, Honeycutt argues, that the State failed to prove the element
that he either entered Pinion's residence unlawfully or remained in
Pinion's residence unlawfully. (Honeycutt's brief, pp. 22-24.) As to his
attempted-murder conviction, Honeycutt argues that the State failed to
prove that he had the intent to kill. (Honeycutt's brief, pp. 24-28.) The
State argues that Honeycutt failed to preserve this claim because,
according to the State, he is alleging grounds on appeal that were "not
raised during trial." (State's brief, p. 21.) Alternatively, the State asserts
that Honeycutt's argument is meritless. (State's brief, pp. 21-26.)
At the conclusion of the State's case-in-chief, Honeycutt moved for
a judgment of acquittal as to each charge "due to insufficient evidence"
being presented to support a verdict beyond a reasonable doubt. (R. 343.)
Although Honeycutt continued to make a more specific argument as to
his first-degree-burglary charges, which he does not advance on appeal,
Honeycutt's general ground that there was "insufficient evidence" to
support a conviction preserved his appellate argument. See Ex parte
Hall, 843 So. 2d 746, 749 (Ala. 2002) (finding that the general ground
that there is "insufficient evidence" to support a conviction is sufficient
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to preserve a more specific ground on appeal). We thus turn to the merits
of Honeycutt's argument.
" ' "In determining the sufficiency of the evidence to
sustain [a] conviction, this Court must accept as
true the evidence introduced by the State, accord
the State all legitimate inferences therefrom, and
consider the evidence in the light most favorable
to the prosecution." Faircloth v. State, 471 So. 2d
485, 489 (Ala. Crim. App. 1984), affirmed, Ex parte
Faircloth, [471] So. 2d 493 (Ala. 1985).'
"White v. State, 546 So. 2d 1014, 1017 (Ala. Crim. App. 1989)."
Tate v. State, 305 So. 3d 254, 257 (Ala. Crim. App. 2019).
A. First-Degree Burglary
On appeal, Honeycutt argues that the evidence failed to establish
that he either entered Pinion's residence unlawfully or remained in
Pinion's residence unlawfully. Specifically, Honeycutt argues that no
evidence established that he had trespassed; that Pinion did not tell
anyone to deny Honeycutt entrance into the residence; that Freeman, not
being a resident, had no authority to control who entered Pinion's
residence; that no one attempted to block his entry into Pinion's
residence; and that no evidence established that he remained unlawfully
because no one told him to leave. (Honeycutt's brief, pp. 22-24.)
Section 13A-7-5, Ala. Code 1975, provides:
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"(a) A person commits the crime of burglary in the first
degree if he or she knowingly and unlawfully enters or
remains unlawfully in a dwelling with intent to commit a
crime therein, and, if, in effecting entry or while in dwelling
or in immediate flight therefrom, the person or another
participant in the crime:
" ….
"(2) Causes physical injury to any person
who is not a participant in the crime; or
"(3) In effecting entry, is armed with a deadly
weapon or dangerous instrument or, while in the
dwelling or immediate flight from the dwelling,
uses or threatens the immediate use of deadly
weapon or dangerous instrument against another
person."
Section 13A-7-1(3), Ala. Code 1975, states that "[a] person 'enters or
remains unlawfully' in or upon premises when he is not licensed, invited
or privileged to do so." See also Davis v. State, 737 So. 2d 480, 482-83
(Ala. 1999). Moreover, "[a]n unlawful entry or unlawful remaining
constitutes the trespassory element of burglary, which element, when
coupled with the intent to commit a crime inside, forms the nucleus of
the burglary offense." Davis, 737 So. 2d at 482.
Here, around 11 a.m. on March 26, 2021, Pinion told Honeycutt that
he "can't keep coming" to her residence. (R. 99-100.) When Honeycutt
arrived back at Pinion's residence that evening, Pinion told Freeman,
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Finch, and Frost to tell Honeycutt that she was not home. (R. 102.) Upon
answering the door, Freeman told Honeycutt that Pinion was not home.
(R. 177-178.) However, Honeycutt told Freeman that he had heard
Pinion and proceeded to "push[] past" Freeman to enter Pinion's
residence. (R. 178.) Once inside, Honeycutt drew a gun, pointed it at
Finch, told Finch to "[d]ie" or "I'm going to kill you," and pulled the trigger
of his gun. (R. 125, 127, 180-181, 185.)
Honeycutt's argument that he did not trespass and, thus, could not
have committed first-degree burglary is meritless. "[T]he trespassory
element of burglary" is met by proving "[a]n unlawful entry or unlawful
remaining." Davis, 737 So. 2d at 482. Honeycutt was neither an owner
or a lawful occupant of Pinion's residence, and he has not shown that he
otherwise had a right to enter without permission. See Tate, 305 So. 3d
at 259 (finding that "evidence was sufficient to show that Tate was not
an owner or lawful occupant of the apartment and that he had no right
to enter without permission"). Moreover, the evidence showed that
Honeycutt forcefully entered the residence by "push[ing] past" Freeman
to gain entry. The evidence supports the determination that Honeycutt
was not "licensed, invited or privileged" to enter Pinion's home. Thus,
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the State presented sufficient evidence to prove that Honeycutt's entry
into Pinion's residence was unlawful, and Honeycutt is due no relief.
B. Attempted Murder
Finally, Honeycutt argues that the State failed to present sufficient
evidence to support his conviction for attempted murder. (Honeycutt's
brief, pp. 24-28.) Specifically, Honeycutt argues that the evidence failed
to prove that he had the intent to kill Finch. (Honeycutt's brief, pp. 24-
28.)3
" 'The elements of the crime of attempted murder are intent to
kill and an overt act towards commission of that act.'
Bradford v. State, 734 So. 2d 364, 369 (Ala. Crim. App. 1999)
(citing Chaney v. State, 417 So. 2d 625 (Ala. Crim. App.
1982)).
3Honeycutt also argues that the State failed to prove that he had a
motive to kill Finch, that Honeycutt's injuries compared to Finch's
injuries were inconsistent with showing that Honeycutt was the culprit,
that the witnesses had an opportunity to consult one another, and that
no witness could have heard the gun "click" three times. (Honeycutt's
brief, pp. 24-28.) However, these arguments are waived under Rule
28(a)(10), Ala. R. App. P., because Honeycutt fails to present any caselaw
or other authority to support his arguments. Moreover, Honeycutt's
arguments address the weight of the evidence, not its sufficiency, and
were thus not preserved for appellate review. Even if they were
preserved, Honeycutt is not entitled to relief because any conflicts in the
evidence were for the jury to determine. A prima facie case was
established, and the evidence was not so lacking as to make the verdict
"wrong or unjust." See, e.g., Thompson v. State, 97 So. 3d 800, 810 (Ala.
Crim. App. 2011).
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" ' "Attempted murder is a specific intent crime….
An attempt to commit murder requires the
perpetrator to act with the specific intent to
commit murder…. A general felonious intent is
not sufficient." Free v. State, 455 So. 2d 137, 147
(Ala. Crim. App. 1984). To establish a prima facie
case of attempted murder, the State must present
evidence of the accused's specific intent to kill, and
of "some overt act in part execution of the intent to
commit the crime … which falls short of the
completed crime; the difference between attempt
and commission being that the act or step fails to
produce the result intended." Broadhead v. State,
24 Ala. App. 576, 139 So. 115, 117 (1932).'
"Minshew v. State, 594 So. 2d 703, 704 (Ala. Crim. App. 1991)."
Murphy v. State, 108 So. 3d 531, 540-41 (Ala. Crim. App. 2012).
Here, the State presented sufficient evidence to prove that
Honeycutt had the specific intent to kill Finch. Immediately after
unlawfully entering Pinion's residence, Honeycutt drew his gun and
pointed it at Finch. (R. 125, 180, 185.) Honeycutt then said Finch's name
and either "[d]ie" or "I'm going to kill you" and pulled the trigger multiple
times. (R. 125, 127, 146, 180-183, 229.) Honeycutt's intent was shown
by his use of a deadly weapon and his preceding statements direct toward
Finch. See Parris v. State, 885 So. 2d 813, 832 (Ala. Crim. App. 2001)
(finding that "[i]ntent may be presumed from the use of a deadly weapon,
the character of the assault, and other attendant circumstances
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surrounding the assault" and is a question for the jury). The State thus
presented sufficient evidence to prove that Honeycutt attempted to kill
Finch. Honeycutt is due no relief.
Conclusion
For the above-stated reasons, the trial court's judgment is affirmed
with respect to Honeycutt's convictions and sentences for attempted
murder, certain persons forbidden to possess a firearm, and one count of
first-degree burglary. However, this case is remanded to the trial court
with instructions for that court to vacate one of Honeycutt's first-degree-
burglary convictions, as well as the resulting sentence. Due return shall
be made to this Court within 42 days of the date of this opinion.
AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.
Windom, P.J., and Kellum, Minor, and Anderson, JJ., concur.
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