James Earl Van Alstine shot and killed Hal Abercrombie with a handgun. The homicide was the result of a gunfight between the two that erupted as their vehicles were being driven along an interstate highway. Van Alstine was convicted by a jury of felony murder, and was sentenced to life imprisonment. 1
1. The evidence is sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
[T]he requirement . . . that an evidentiary hearing must be requested at the time of an amended motion for new trial does not apply to a case where the appellate counsel did not participate in the motion for new trial, and the issue of [ineffective assistance] of counsel is raised for the first time on appeal. [Id. at 430.]
We apply that holding to this case, and remand to the trial court for a hearing on the claim of ineffective assistance. 2
3. Contentions concerning the trial court's charge to the jury are without merit.
Lewis R. Slaton, District Attorney, Carole E. Wall, Assistant District Attorney, Michael J. Bowers, Attorney General, Robert D. McCullers, Staff Attorney, for appellee.