Minshew v. State, 1 Div. 712

• Decision Date: 23 November 1988
• Docket Number: 1 Div. 712
• Citation: 542 So.2d 307
• Parties: William Ray MINSHEW v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 307

542 So.2d 307

William Ray MINSHEW v. STATE.

1 Div. 712.

Court of Criminal Appeals of Alabama.

Nov. 23, 1988.

Rehearing Denied Jan. 27, 1989.

Certiorari Denied April 21, 1989

Alabama Supreme Court 88-563.

David L. Ratcliffe, Mobile, for appellant.

Don Siegelman, Atty. Gen., and Beth Jackson Hughes, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

William Ray Minshew was convicted of first degree burglary and was sentenced to 20 years' imprisonment. He raises six issues on this appeal from that conviction.

I

First, he claims that the trial court erroneously granted the State's challenge for cause of prospective juror Zadie Arnold. We agree.

Voir dire questioning revealed that Ms. Arnold's brother had been prosecuted for robbery by the Mobile district attorney, had been convicted, and was currently in jail. With no further showing or information, the trial judge granted the prosecutor's challenge for cause. This constituted error.

Ms. Arnold was neither asked about nor expressed any personal feelings about Minshew, the district attorney's office, or her brother. For all we know, she could have been the victim of the robbery her brother committed, or she could have disliked her brother for any number of reasons and harbored no animosity or resentment against the district attorney's office for prosecuting him. The fact that a venire member's brother was convicted of a crime by the prosecutor does not, in and of itself, constitute either a statutory or a common-law challenge for cause. Code of Alabama 1975, § 12-16-150. See Ex parte Nettles, 435 So.2d 151, 152-53 (Ala.1983) (employment of venire member by victim does not give rise to implied bias as a matter of law and does not constitute automatic disqualification); Poellnitz v. State, 48 Ala.App. 196, 199-200, 263 So.2d 181 (1972) (robbery victim is not necessarily disqualified as a juror in a burglary trial).

"The test to be applied is probable prejudice. Probable prejudice for any reason disqualifies a prospective juror. Qualification of a juror is a matter within the discretion of the trial court and, on appeal, this court will look to the questions propounded and the answers given by the prospective juror to see if this discretion was properly exercised." Alabama Power Co. v. Henderson, 342 So.2d 323, 327 (Ala.1977).

"To justify a challenge of a juror for cause there must be a statutory ground ..., or some matter which imports absolute bias or favor, and leaves nothing to the discretion of the trial court." Nettles v. State, 435 So.2d 146, 149 (Ala.Cr.App.), affirmed, Ex parte Nettles, 435 So.2d 151 (Ala.1983).

Even "[p]roof that the juror has a biased or fixed opinion is insufficient. There must be proof that the opinion was 'so fixed that it would bias the verdict of the juror.' " Clark v. State, 443 So.2d 1287, 1288 (Ala.Cr.App.1983). "[I]f the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court," he is not subject to challenge for cause, Mahan v. State, 508 So.2d 1180, 1182 (Ala.Cr.App.1986); Sparks v. State, 450 So.2d 188, 191 (Ala.Cr.App.1984). Here, there was no proof of any bias on the part of Ms. Arnold as a result of her brother's prosecution, much less an absolute bias which would have prevented her from rendering a fair and impartial verdict. Further uestioning of Ms. Arnold was required before the trial court could determine, first, whether her brother's prosecution caused her to harbor a prejudice against the State and, second, assuming such a prejudice existed, whether she could lay it aside, follow the court's instructions, and render an impartial verdict. See, e.g., Stringfellow v. State, 485 So.2d 1238, 1242 (Ala.Cr.App.1986) (wherein defense counsel was given the opportunity to question the venireperson to determine whether prejudice existed); Clark v. State, supra (wherein the court questioned the prospective juror to determine whether stated prejudice could be laid aside); Johnson v. State, 356 So.2d 769, 772 (Ala.Cr.App.1978) (wherein venireman's answer, on follow-up questioning by the court, that although he was "a little biased" because he had been the victim of a recent robbery, he could listen to the evidence and render an impartial decision in robbery case, removed ground for challenge for cause).

II

Minshew argues that his motion in limine to prevent the State from introducing evidence of two subsequent offenses should have been granted. We hold that the trial court properly denied the motion and allowed the State to offer evidence of the collateral offenses for the purpose of showing the defendant's intent. However, the State's proof regarding the defendant's apprehension for those offenses was too far-ranging and, on retrial, should be limited to the facts constituting the crimes themselves.

The defendant was tried for entering or remaining unlawfully in the residence of his estranged wife's parents, Mr. and Mrs. Henderson, with the intent to harass, menace, or assault Mrs. Henderson on June 2, 1986. The State's evidence established that he forced his way into his mother-in-law's home, pushed Mrs. Henderson against a wall, pulled a knife from his pocket and cut her telephone cord as she tried to dial for the police, and then held the knife to her mouth when she tried to run away. According to the State's witnesses, Mrs. Henderson sustained a small puncture wound on her lip as a result of her encounter with the defendant.

The defendant testified that his mother-in-law allowed him to enter the residence but became angry when he told her why he wanted to talk with her daughter, from whom he was separated. According to the defendant, Mrs. Henderson slapped and clawed him and cut her lip during the process. He admitted cutting the telephone cord, but claimed that he did so in response to his mother-in-law's threat to call her husband. He denied holding a knife to Mrs. Henderson's mouth, cutting her lip, or having the intent to harm or frighten her, contending that he meant only to settle the domestic difficulties between his wife, her family, and himself.

Burglary is a specific intent crime. Ala.Code 1975, §§ 13A-7-5 through 13A-7-7 (Commentary). It is committed by one who "knowingly and unlawfully enters or remains unlawfully in a dwelling with intent to commit a crime therein." Ala.Code 1975 § 13A-7-5(a) (emphasis added). "If an accused is charged with a crime that requires a prerequisite intent ... then prior or subsequent criminal acts are admissible to establish that he had the necessary intent when he committed the instant crime." Jones v. State, 439 So.2d 1308, 1310 (Ala.Cr.App.1983), and authorities cited therein.

Given the conflict in the evidence in this case, the defendant's intent was at issue. Brewer v. State, 440 So.2d 1155, 1158 (Ala.Cr.App.1983), is inapplicable here for two reasons. First, unlike the brutal murder in Brewer, the commission of which established intent, the nature of Mrs. Henderson's injury did not foreclose the possibilities of accident, self-infliction, or self-defense by the defendant. Second, unlike the accused in Brewer, whose defense was alibi, the defendant here admitted much of the conduct at issue but claimed lack of criminal intent.

The two collateral offenses proved by the State related to occurrences in October 1986 and October 1987. In October 1986, the defendant entered the Henderson home, took his estranged wife hostage, and held her for several hours until she jumped from a second story window. He was convicted of criminal trespass. In October 1987, just a week prior to trial on the instant indictment, the defendant was arrested after he was discovered one night armed with a derringer outside the Hendersons' house, where his estranged wife was residing after having threatened her life.

Both collateral offenses involved the defendant's estranged wife or her family and were marked by force or the potential for violence on the defendant's part. They were, therefore, admissible to shed light on the defendant's intent during the June 2 encounter with Mrs. Henderson and to rebut his claims that he was allowed to enter the Henderson residence and that he intended only to resolve a domestic dispute but not to commit a crime on June 2, 1986. See Stanley v. State, 57 Ala.App. 83, 84 326 So.2d 148, 149 (1976) (accused's confession to two other burglaries against same tenant admitted to show his entry was not by invitation and his intent was to steal).

Although the facts constituting the defendant's subsequent offenses were material to prove his intent for the instant prosecution, evidence of the means of apprehending the defendant for those offenses had no bearing on any triable issue, was unduly inflammatory, and should be omitted on retrial. We find, for instance, that the testimony concerning the police emergency response team, "hostage negotiations," the "assault plan on the residence," evacuating the neighborhood, perimeters, and sharpshooters, regarding the incident for which the defendant was convicted of criminal trespass, should not have been admitted because it is immaterial, without probative value, and highly prejudicial.

III

The defendant argues that the following sentence contained in the court's supplemental oral charge foreclosed a finding of fact in his favor by the jury: "[I]n this case the defendant was charged with using a knife and you've got to believe that the knife was a deadly weapon or a dangerous instrument."

" '[T]he portion of the charge here excepted to should be construed in connection with the whole charge of the court.' Ex parte Cowart, 201 Ala. 525, 78 So. 879 (1918).... 'While a particular remark by the trial judge may be open to question, in order for it to amount to the grossly improper error requiring reversal, it must have influenced the result of the case.' Lokos v. State, 434 So.2d 818, 823 (Ala.Cr.App.1982), affirmed, Ex parte Lokos, 434 So.2d 831 (Ala.1983)." Gamble...