Quinlivan v. State

Decision Date13 November 1992
Docket NumberCR-91-620
Citation627 So.2d 1082
PartiesJoseph D. QUINLIVAN, Jr. v. STATE.
CourtAlabama Court of Criminal Appeals

Barry Hess, Mobile, for appellant.

James H. Evans, Atty. Gen., and Thomas Leverette, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

This is an appeal from the appellant's third conviction for manslaughter. In 1988, the appellant was indicted for the murder of Robert DeGarcia and was convicted of the lesser included offense of manslaughter. That conviction was reversed on appeal because the trial court failed to give the appellant's written requested jury charges dealing with justification and self-defense. Quinlivan v. State, 555 So.2d 802 (Ala.Cr.App.1989). In 1990, the appellant was retried and again convicted. His second conviction was reversed on appeal due to the improper rebuttal closing argument by the prosecutor. Quinlivan v. State, 579 So.2d 1386 (Ala.Cr.App.), cert. quashed, 596 So.2d 658 (Ala.1991).

In 1991, the appellant was tried a third time, was again convicted of manslaughter, and was sentenced to ten years' imprisonment. The sentence was split, with three years to serve in a jail-like facility and seven years on probation. On this appeal, the appellant raises seven issues.

This court summarized the facts presented at the appellant's first trial, which are not materially different from those established at the third trial, in Quinlivan v. State, 555 So.2d at 803-04. This appeal is based solely upon the facts and evidence presented at the appellant's third trial. See Ex parte Cade, 521 So.2d 85, 86-88 (Ala.1987), cert. denied, 488 U.S. 871, 109 S.Ct. 184, 102 L.Ed.2d 153 (1988).

I

The appellant contends that the trial court erred by informing the jury that he had been tried twice before. The court gave the jury this information during voir dire examination, in the context of inquiring whether any member of the venire had been a member of the grand jury that had indicted the appellant, or a member of either petit jury before which the appellant had been previously tried.

A trial judge has the duty to ascertain whether jurors possess the qualifications required by law, Ala.Code 1975, § 12-16-6, and it is imperative that the trial judge perform this duty. "The grand juror, who has indicted the accused, is excluded by the common law, though he hears only the evidence for the State." Smith v. State, 55 Ala. 1, 9 (1876). "Jurors who were members of a former jury, to whom the cause had been submitted ... are not competent jurors upon a subsequent trial of the cause; they are not impartial--free from the bias of formed opinions." Dothard v. Denson, 72 Ala. 541, 543 (1882). See also Head v. State, 377 So.2d 160 (Ala.Cr.App.), cert. denied, 377 So.2d 161 (Ala.1979).

The trial court correctly inquired whether any member of the venire had served on the grand jury or either of the appellant's two previous petit juries. Any possible prejudice to the appellant arising from this inquiry was eradicated by the following charge to the jury at the conclusion of the evidence:

"The second thing I want to say to you, and it has been alluded to in the voir dire proceedings and other statements made to you, this defendant has been tried on two previous occasions. Under no circumstances, ladies and gentlemen, should you consider the indictment, as I have told you, as being evidence against him; under no circumstances, ladies and gentlemen, in the course of your deliberations should you consider the fact that this defendant has been placed on trial on two previous occasions. That is absolutely not for your consideration, and if you were to deliberate with that in mind, it would be in the nature of disparaging the oath which you have taken." R. 408-09 (emphasis added).

II

The appellant argues that the trial court erred by excluding evidence that the deceased feloniously possessed a shotgun in violation of federal law. He claims that the evidence tended to show that the deceased was the aggressor during the fatal encounter.

The appellant offered to prove that the deceased had eleven prior convictions for forgery and that he was on probation for a federal conviction, was a fugitive from probationary supervision, was using an alias at the time of his death, and was aware that possession of a firearm was a violation of his probation. The court rejected this offer of proof on the ground that the proposed evidence was irrelevant.

Once there is evidence of self-defense in a homicide prosecution, the accused is entitled to prove that the deceased was a violent and bloodthirsty person, as tending to show that the deceased was the aggressor. White v. State, 294 Ala. 265, 273, 314 So.2d 857, 864, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975); C. Gamble, McElroy's Alabama Evidence § 33.01 (4th ed. 1991). Alabama follows the rule that the deceased's violent nature may be proved only by evidence of reputation and not by specific acts. Stokley v. State, 254 Ala. 534, 543, 49 So.2d 284, 292 (1950) ("Even if it be conceded that, under the evidence, the defendant was entitled to show that the character of the deceased was that of a violent, turbulent and bloodthirsty man, an inquiry of this character must relate to reputation. It is not permissible to show specific acts of conduct."); Tate v. State, 337 So.2d 13, 20 (Ala.Cr.App.1976) (same).

Dean Wigmore criticized this approach and maintained that

"[w]hen a character trait of the victim of a crime is relevant, there is no substantial reason against evidencing the character by particular instances of the victim's conduct. Such instances may be very significant; their number can be controlled by the trial court's discretion; and the prohibitory considerations applicable to an accused's character have here little or no force. Thus, for example, when the turbulent character of the deceased is relevant in a criminal prosecution for homicide, particular instances of violent or quarrelsome conduct by the victim should be admissible."

2 Wigmore, Evidence § 63.1 at 1382 (Tillers rev. 1983).

We are not at liberty to change the rule of Alabama evidence that prohibits proof of specific acts by the deceased, see Jackson v. State, 423 So.2d 320, 321-22 (Ala.Cr.App.1982), but even if we were inclined to adopt the Wigmore approach, we would not find that the deceased's illegal possession of a shotgun had any bearing on this case. Even the Wigmore approach requires the particular act to be relevant to the facts at issue.

In this case, a loaded shotgun belonging to the victim was found leaning against a wall at the scene of the homicide. It was undisputed that the shotgun had not been fired, aimed, or handled during the events in question here. The appellant claimed that he acted in self-defense when the deceased drew a knife on him. These facts are discernibly different from the facts of Poellnitz v. State, 48 Ala.App. 144, 262 So.2d 631 (1972), a case cited by the appellant for the proposition that his offer of proof was relevant because it "tended to show under what circumstances the deceased carried a pistol." Id. at 148, 262 So.2d at 635.

In Poellnitz, the accused claimed that he fired at the deceased, who had a rifle "hanging in his hand ... to prevent the deceased from shooting him." Id. at 146, 262 So.2d at 633. The accused also presented testimony that the deceased had been seen with a pistol on prior occasions. In rebuttal, the prosecution was allowed to introduce evidence that the deceased was a deputy sheriff authorized to carry a firearm. The Poellnitz court approved the admission of the State's rebuttal evidence, explaining that

"[w]here, as here, the defendant had introduced testimony that the deceased had, on several occasions, been seen with a pistol, we feel Deputy Garner's testimony to be relevant in that it tended to show under what circumstances the deceased carried a pistol. Without the benefit of this testimony, the jury might have been misled into believing that the deceased went about armed with a pistol for some reason other than the fact that he was a law enforcement officer. The jury was entitled to have before it this evidence to put the matter in its true light."

Poellnitz v. State, 48 Ala.App. at 148, 262 So.2d at 635.

What made the deceased's possession of a firearm relevant in Poellnitz was the accused's claim that the deceased had been armed with a gun during the fatal encounter. No such claim was made here. Compare Lemley v. State, 599 So.2d 64, 75 (Ala.Cr.App.1992) ("[i]f the force which arguably justified the appellant's right of self-defense was "unlawful" in this case, it was not because the weapon was prohibited by ordinance, but because the weapon was aimed at the appellant"). The evidence in this case established that the victim's shotgun played no part in the events leading up to this homicide. Therefore, the trial court correctly determined that the victim's possession of the firearm, even if felonious, was irrelevant to the appellant's claim of self-defense.

III

During the altercation, the appellant fired six shots. Expert testimony established that the deceased suffered six gunshot wounds made by five bullets. Three bullets were removed from the victim's body, two bullets passed through a mirror in back of a bar in the room where the victim was shot, and the remaining bullet was never found. The appellant's defense was that he fired all six shots in rapid succession after the victim threatened him with a knife.

During his investigation at the scene of the homicide, Mobile Police Sergeant Donald Leeth observed that a bullet hole in the top of the bar appeared to align with one of the bullet holes in the mirror behind the bar. Leeth ran a string through the two bullet holes, extended the string to the opposite side of the room, and photographed the length of string.

The appellant claims that the...

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