Connolly v. State

• Decision Date: 30 November 1990
• Docket Number: 1 Div. 90
• Citation: 602 So.2d 443
• Parties: Rodney CONNOLLY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 443

602 So.2d 443

Rodney CONNOLLY v. STATE.

1 Div. 90.

Court of Criminal Appeals of Alabama.

Nov. 30, 1990.

On Return to Remand May 17, 1991.

Rehearing Denied June 28, 1991.

Elizabeth H. Shaw, Mobile, for appellant.

Don Siegelman, Atty. Gen., and Robert E. Lusk, Jr., Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The appellant, Rodney James Connolly, was originally convicted and sentenced to life without parole for the 1983 capital murder-robbery of Kathy Jo Sands. That conviction was reversed on appeal because of the trial court's failure to instruct the jury on the lesser included offense of murder. Connolly v. State, 500 So.2d 57 (Ala.Cr.App.1985), affirmed, 500 So.2d 68 (Ala.1986). Connolly was then tried and convicted for the theft of Ms. Sands's automobile. That conviction was affirmed on appeal. Connolly v. State, 467 So.2d 970 (Ala.Cr.App.1985) (no opinion). After that conviction for theft, Connolly was then retried for capital murder-robbery. He was then convicted of murder and sentenced to life imprisonment. That conviction was reversed on appeal because the prosecution for capital murder-robbery was barred by his prior conviction for the theft of the victim's automobile under principles of former jeopardy. Connolly v. State, 539 So.2d 436 (Ala.Cr.App.1988). In 1989, Connolly was tried and convicted for the non-capital murder of Ms. Sands. He was sentenced to life imprisonment without the possibility of parole as a habitual felony offender. This appeal is from that conviction and sentence. The defendant raises five issues on this appeal.

I.

The trial court refused the appellant's written requested charge which stated: "I charge you, members of the jury, that if the evidence convinces you that Stacey Bruner Travathan [sic] is a woman of bad character, and unworthy of belief, then you may disregard her evidence altogether." In refusing this charge, the trial judge stated, "I still don't know, even if you prove bad character that that means you may disregard her testimony."

In reviewing the denial of a requested jury instruction, this Court must determine 1) whether the refusal was preserved for appellate review by proper objection at trial, 2) whether the denial of the requested charge constituted error, and 3) whether that error was prejudicial to the defendant and constitutes reversible error.

In this case, defense counsel preserved this issue for review by proper and timely objection. We specifically reject the State's hypertechnical argument that a requested charge may be properly refused merely because it contains a misspelled word. Goff v. State, 572 So.2d 1283 (Ala.Cr.App.1990) (Bowen, J., concurring specially). See also Kitsos v. State, 574 So.2d 979 (Ala.Cr.App.1990).

The charge requested by the appellant states a correct principle of law. On consideration of the refusal of the identical requested charge on the last appeal of this case, this Court held:

"The refusal of a virtually identical charge was found to constitute reversible error in Ashlock v. State, 367 So.2d 560 (Ala.Cr.App.1978), cert. denied, 367 So.2d 562 (Ala.1979). However, here the court's failure to give the charge was not properly preserved for our review."

Connolly, 539 So.2d at 437.

Here, there was evidence that the witness was a "woman of bad character." See Ashlock v. State, 367 So.2d 560 (Ala.Cr.App.1978), cert. denied, 367 So.2d 562 (Ala.1979). Hence, the refusal of this charge constitutes error. "[O]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." Chavers v. State, 361 So.2d 1106, 1107 (Ala.1978).

Having determined that the refusal of this charge was error, we must now decide whether such error requires a reversal of this cause. See Kennedy v. State, 291 Ala. 62, 65, 277 So.2d 878, 880 (1973); Rule 45, A.R.App.P.

"Failure to give proposed instructions constitutes reversible error only if the proposed instruction: '(1) was correct, (2) was not substantially covered by others delivered, and (3) concerned a point in the trial so important that the failure to give the requested instruction seriously impaired the defendant's ability to defend himself.' United States v. Sans, 731 F.2d 1521, 1529-30 (11th Cir.1984), cert. denied, 469 U.S. 1111, 105 S.Ct. 791, 83 L.Ed.2d 785 (1985)."

United States v. Williams, 875 F.2d 846, 852 (11th Cir.1989). "This Court has held that the refusal to give a correct requested written charge does not per se import injury and we are authorized to reverse only when the error complained of 'has probably injuriously affected substantial rights of the parties,' and this is to be determined only 'after an examination of the entire case.' " Kennedy, 291 Ala. at 65, 277 So.2d at 880. Rule 45, A.R.App.P., provides, in pertinent part:

"No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges ... unless in the opinion of the court to which the appeal is taken ..., after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties."

In Turner v. State, 238 Ala. 352, 355, 191 So. 396, 398 (1939), the Alabama Supreme Court held:

"In express terms [Supreme Court Rule 45 (which was virtually identical to current Rule 45, A.R.App.P.) ] applies to errors in the refusal of special charges. There can be no error in refusing a charge unless it correctly states a principle of law applicable to some phase of the case.

"The inexorable logic is that although the charge does state a correct principle applicable to the case, no reversal shall follow, unless, in the opinion of the appellate court, after an examination of the entire cause, it shall appear that the error has probably injuriously affected substantial rights of the parties. In other words, the refusal of a proper charge does not per se import injury."

An examination of the entire record convinces this Court that the refusal to give the requested charge in this particular case was not reversible error.

Mrs. Trevathan's testimony was substantially corroborated, although not to the extent necessary for that corroboration, in and of itself, to render the error in the refusal of the requested charge harmless. See Kennedy v. State, 291 Ala. at 65-66, 277 So.2d at 881; Gwin v. State, 425 So.2d 500, 509-10 (Ala.Cr.App.1982), cert. quashed, 425 So.2d 510 (Ala.1983). In Gwin, 425 So.2d at 509-10, this Court held that the refusal of a requested charge covering the principle of disregarding the testimony of a witness of bad character was not reversible error "because [the witness's] testimony in all material aspects, was fully corroborated." In quashing the granting of the petition for a writ of certiorari, the Alabama Supreme Court stated:

"By quashing the writ for failure to comply with Rule 39(k), we are not to be understood as agreeing that Kennedy is authority for the abstract proposition that under all circumstances the corroboration of a witness's testimony renders harmless the error for failing to give the jury instruction which was requested in this case. Kennedy must be construed within its narrow and peculiar factual context."

Ex parte Gwin, 425 So.2d 510, 511 (Ala.1983).

In Kennedy, the Supreme Court held that although this type of bad-character charge should have been given, its refusal was harmless error. The Court clearly established that such a requested charge does not have to include the additional words "unless corroborated by testimony not so impeached." 291 Ala. at 65, 277 So.2d at 880. In that particular case, however, the court held that the witness's testimony was fully corroborated by another eyewitness to the robbery and by various police officers who apprehended the defendant less than 30 to 40 minutes after the holdup. The witness's wallet was found in the defendant's back pocket. The Court specifically noted that "the defendant offered no witnesses in his own behalf." Kennedy, 291 Ala. at 65, 277 So.2d at 880. The court concluded that the refusal of the charge "while error, was not such error as to have probably injuriously affected the rights of the defendant." Kennedy, 291 Ala. at 66, 277 So.2d at 881. "We feel that for the defendant to have been prejudiced by such error, the jury would have had to have disregarded every shred of the totally uncontradicted evidence presented by the State." Id.

Our review of the entire record convinces this Court that the question in this case was not whether Mrs. Trevathan should be disbelieved because of her bad character, but whether she should be disbelieved because of the discrepancies between her present testimony and the testimony that she had given at Jack Herriman's trial for Ms. Sands's death. See Herriman v. State, 504 So.2d 353 (Ala.Cr.App.1987). ¹ In addition, Ms. Trevathan's credibility was subject to attack because she had been granted complete immunity from prosecution for her involvement in the death of Ms. Sands.

Assuming that the appellant did not arrange to have Herriman kill the victim, there is little that can be said about Mrs. Trevathan's character that cannot be said about the appellant's. In this case there were far more significant and pronounced reasons for the jury to reject parts of Mrs. Trevathan's testimony than for the reason that she was a woman of "bad character." She was the lover the defendant had rejected. The appellant had left Mobile in Mrs. Trevathan's car, with some vague mention of arranging a "meeting" in the future. Sometime after the appellant left, Mrs. Trevathan discovered that he had been seeing another woman at the same time he had been seeing her; that in fact, not only had he been living in the victim's...