The Legal Record

The Franklin County Grand Jury returned a three-count indictment against Jason Dewayne Green:

• Count 1: Intentional murder — alleging he “shot the victim through the mouth,” a violation of Ala. Code §13A-6-2.
   
• Count 2: Possession of marijuana, second degree.
   
• Count 3: Possession of drug paraphernalia.
   

At trial, the State’s theory was that Jason intentionally killed the victim. Yet, after the close of evidence, the court instructed the jury that it could convict on reckless manslaughter—a theory never charged, never argued, and never supported by the evidence. The jury returned a verdict of guilty of reckless manslaughter.

Jason also received concurrent one-year sentences for the marijuana and paraphernalia charges.

Jason filed a Rule 32 Petition for Post-Conviction Relief on May 20, 2021, later amended, arguing that his trial was constitutionally flawed in three main ways:

1. Improper Jury Instructions
    
   • The trial court allowed instructions on reckless manslaughter, voluntary intoxication, and causation even though those theories were unsupported by the indictment or evidence.
      
   • Trial counsel failed to object properly at the correct time, raising the issue only after verdict.
      
   • Under Hill v. State, 507 So.2d 554 (Ala. Crim. App. 1986), a reckless-manslaughter instruction is proper only when facts warrant it. Jason’s case did not.
      

1. Ineffective Assistance of Counsel
    
   • Counsel’s failure to object to the reckless-manslaughter charge before the verdict, failure to request a proper §13A-2-4(c) instruction on intent, and failure to seek severance of unrelated drug charges deprived Jason of his Sixth Amendment right to effective counsel.
      
   • The claim is governed by Strickland v. Washington, 466 U.S. 668 (1984): (1) deficient performance, and (2) prejudice to the defense.
      
   • Alabama courts apply the same test: Morrison v. State, 551 So.2d 435 (Ala. Crim. App. 1989); Wilson v. State, 644 So.2d 1326 (Ala. Crim. App. 1994).
      

1. Use of Perjured Expert Testimony
    
   • The State’s forensic expert, Jan Johnson, later admitted errors that directly contradicted her trial testimony.
      
   • The trial court denied Jason’s motion to amend his new-trial motion to include that perjury—an error now raised on appeal.
      

Franklin County Circuit Judge Brian Hamilton held an evidentiary hearing on December 20, 2022.
On June 16, 2023, he denied relief, holding that reckless manslaughter can be a lesser-included offense of intentional murder.

Jason’s appeal argues that this ruling ignored a fundamental point:Reckless manslaughter can only be a lesser-included offense when the facts and actus reus are the same.
In this case, they were not.
The grand jury charged intentional murder by shooting; the jury convicted on reckless manslaughter by causing a suicide.
Those are legally distinct acts and mental states.
 

Jason’s current appeal rests on this constitutional premise: you cannot convict a person of a crime the grand jury never charged. The failure to preserve that principle stripped him of due process and violated the 5th, 6th, 8th, and 14th Amendments to the U.S. Constitution, as well as Article I §§6 and 11 of the Alabama Constitution.

• The victim’s toxicology report revealed ethanol, THC, hydrocodone, methamphetamine, amphetamine, and phentermine.
   
• Her mental-health records documented multiple prior suicide attempts and gestures.
   
• The scene evidence showed a single gunshot wound to the mouth; the gun was found beside her, with her left fingertips on the barrel and a burning cigarette between two fingers of her right hand.
   
• On the 911 call, Jason said he had handed her the gun after she said, “F*** this, f*** you, f*** it all,” and that she pulled the trigger.
   

These facts were never litigated under a causing a suicide theory before the jury—only redefined as such in the final instructions.

 The Franklin County Grand Jury charged Jason with intentional murder—that he “shot the victim through the mouth,” a violation of § 13A-6-2, Code of Alabama. It also charged two minor drug offenses: possession of marijuana, second degree, and possession of drug paraphernalia.

The State’s theory never changed during trial: Jason intentionally shot the victim and staged the scene to look like a suicide. Prosecutors told the trial court, “We were 100 percent intentional—he did it.” (TR 18.) Their experts testified accordingly.

Yet, after the close of evidence, the prosecution requested a reckless-manslaughter instruction—a theory inconsistent with everything they had argued. The trial judge granted it. The jury returned a verdict of reckless manslaughter, not intentional murder.

Reckless manslaughter can only be a “lesser-included” offense of intentional murder when both charges share the same act and mental state nucleus. Here, they did not.

• The indictment charged intentional shooting.
   
• The instruction invited conviction for recklessly causing a suicide.
   

That change was not a “lesser” offense; it was a different crime altogether, inserted after the evidence closed—without notice, amendment, or defense preparation.

The prosecution’s own statements prove it. They admitted they were “100 percent intentional” yet asked for a reckless charge. That contradiction alone violates Alabama law:

“A party is entitled to have his theory of the case, made by the pleadings and issues, presented to the jury by proper instruction.”
— Ex parte McGriff, 908 So.2d 1024 (Ala. 2004)
 

And as Marsh v. State, 461 So.2d 51 (Ala. Crim. App. 1984)* warns:

“If a defendant is charged with intentional murder but the jury is also charged on reckless murder, there is a serious risk that he could be convicted of an offense for which he was not charged and of which he had no opportunity to defend.”
That is precisely what happened here.

The Alabama Constitution (Art. I, §§ 6 & 11) and the U.S. Constitution (Amendments V, VI, XIV) guarantee that no one can be convicted except on the charge returned by a grand jury.

Alabama’s own courts have long enforced that rule:

• Gayden v. State, 80 So.2d 495 (Ala. App. 1955): an indictment must specify the act and manner so the accused knows what to defend.
   
• Nelson v. State, 278 So.2d 734 (Ala. Crim. App. 1973): due process forbids conviction “upon a charge not made.”
   
• Ex parte Hightower, 443 So.2d 1272 (Ala. 1983): the accused may answer only the specific charge in the indictment; proof of a different crime or different facts deprives him of notice.
   

In short: a trial court cannot substitute a new theory of homicide after the jury has heard all the evidence. Doing so denies notice, due process, and the right to counsel.

Trial counsel’s failure to object to the reckless-manslaughter charge before verdict violated both prongs of the Strickland v. Washington test:

1. Deficient performance. Counsel did not preserve the variance, amendment, or due-process objections in time for appeal.
    
2. Prejudice. There is a reasonable probability that, but for this error, the verdict would have been different.
    

The Alabama Court of Criminal Appeals and U.S. Supreme Court recognize that an error undermines confidence in the outcome when it allows conviction for an uncharged offense. See Strickland, 466 U.S. 668 (1984); Harrington v. Richter, 562 U.S. 86 (2011); Capote v. State, CR-20-0537 (Ala. Crim. App. Aug. 18, 2023).

The trial court’s instruction—

“A person who creates a risk but is unaware of that risk solely because of voluntary intoxication acts recklessly with regard to that risk.”
 

—departed from the Alabama Pattern Jury Instructions (§ 13A-3-2) and confused the jury.
The word solely misstates the law, effectively requiring the jury to find recklessness if it found voluntary intoxication. Counsel failed to object or preserve the issue.

The jury’s notes show confusion: they asked for the toxicology report on Jason Green and requested reinstruction on murder, manslaughter, and negligent homicide. The court re-instructed on those crimes but omitted intoxication. That omission compounded the error and invited a compromised verdict.

Under § 13A-2-4(c), Alabama law links mental state and causation. The trial court instructed on concurrent cause and foreseeability before finishing the homicide instructions, telling jurors:

“If the defendant knowingly advanced and participated in reckless behavior—even if you do not know who fired the fatal shot—then the defendant is criminally liable.”
 

That instruction made no sense under the State’s intentional-murder theory and misled the jury on causation.
Proper causation analysis requires the jury to consider whether the victim’s own free will was an intervening cause—which could sever liability entirely (Lewis v. State, 474 So.2d 766 (Ala. Crim. App. 1985)).
No such instruction was given.

Jason’s trial counsel also failed to request severance of the minor marijuana and paraphernalia counts from the murder charge. Joining them prejudiced the jury, reinforcing the image of criminality unrelated to the homicide count.

Jason’s Rule 32 petition was denied on June 16, 2023. He has appealed that denial. The appellate record shows no factual dispute—only questions of law:

• whether the reckless-manslaughter instruction was a constructive amendment, and
   
• whether trial counsel’s failure to object denied effective assistance under Strickland.
   

Under Clemons v. State, 123 So.3d 1 (Ala. Crim. App. 2012), and Ex parte White, 792 So.2d 1097 (Ala. 2001), such questions receive de novo review.

Bottom line:
Jason was indicted for intentional murder by shooting.
He was convicted of reckless manslaughter by causing a suicide.
That is not a lesser-included offense—it is a different crime altogether.
Conviction on a charge never made is, in the words of the U.S. Supreme Court, “a sheer denial of due process.” (De Jonge v. Oregon, 299 U.S. 353 (1937)).