Raines v. State

• Decision Date: 12 June 1984
• Docket Number: 3 Div. 923
• Citation: 455 So.2d 967
• Parties: Homer Leonard RAINES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 967

455 So.2d 967

Homer Leonard RAINES v. STATE.

3 Div. 923.

Court of Criminal Appeals of Alabama.

June 12, 1984.

Rehearing Denied July 31, 1984.

Certiorari Denied Sept. 21, 1984

Alabama Supreme Court 83-1283.

William T. Chapman, Evergreen, for appellant.

Charles A. Graddick, Atty. Gen., and Michael A. Bownes, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Homer Leonard Raines was indicted for the murder of Ricky Stinson. A jury convicted him of manslaughter. Sentence was ten years' imprisonment.

I

Raines' 1978 conviction for carnal knowledge was a crime involving moral turpitude. See William v. State, 55 Ala.App. 436, 316 So.2d 362 (1975). Evidence of this conviction was properly admitted to impeach his credibility. Alabama Code § 12-21-162 (1975). Whether the prior conviction is too remote in time to have any present probative value toward showing a witness's lack of credibility is a matter within the sound discretion of the trial judge under the facts and circumstances of each particular case. McDaniel v. State, 365 So.2d 350, 351 (Ala.Cr.App.1978).

II

At the beginning of the trial, the judge read the indictment and gave the jury general instructions on the presumption of innocence, the meaning of intent, and the course the trial would follow. This is an approved and accepted practice. See Gaston v. State, 359 So.2d 1170, 1171-72 (Ala.Cr.App.1978). The judge did not make any comment on the facts of the case, and his failure to instruct on potential defenses was not error. See 23A C.J.S. Criminal Law § 1299 (1961).

III

Raines raises several allegations of error which involve the issue of whether or not there was any evidence of self-defense. The trial judge "took the position that as a matter of law in this case there had been no evidence that would permit the Defendant to invoke self-defense." We agree.

The State's evidence showed that James Neese had threatened to kill Raines. On the night of June 30, 1984, Ralph Robert Gomillion, unaware of Neese's intentions, rode with Neese and directed him to Raines' trailer. Gomillion testified that Neese drove past the trailer, turned around, and "(g)ot right below the trailer and ... fired some shots out the window."

In contradiction of Gomillion's testimony, State's witness Sharon Quates, who was living with Raines, testified that around 9:30 that evening a white car drove by Raines' trailer. When the car returned, "it stopped right in front of the trailer and it started shooting at the trailer." The car was parked in the driveway and three shots were fired. No shots hit the trailer. Raines arrived home about 11:30 and Quates told him what had happened.

Ten minutes after Raines had returned to the trailer, Quates and Raines heard a car approaching. They went outside and Quates identified it as "the same car." Quates testified that Raines told her that "he'd just shoot the tire out and stop it and we'd go get the law and find out who it was." Raines then shot five times with a Ruger "Mini 14" semiautomatic rifle.

In a voluntary statement Raines gave to the Deputy Sheriff after his arrest, Raines stated, "When the car came by Sharon said it was the same car. I told her that I could stop them and Leroy could come out and see who it was. Then I shot the car." Raines admitted that when he fired the car was "just past the trailer .... at a power pole just up from the driveway."

Neese fled from the car which had crashed in a ditch. A .45 semiautomatic pistol was found in the car. A .44 caliber revolver was found in the area where Neese fled.

Ricky Stinson was found dead on the passenger's seat of the car. A bullet had entered his head just in front of his right ear and exited his left forehead.

There were a number of bullet holes in the front windshield. Two expended pistol cartridges were found in the dirt road. A third expended pistol cartridge was found in the car. Five expended rifle cartridges were found in Raines' driveway in front of the trailer.

Raines testified in his own defense that when he heard the car coming he turned out the lights and went outside "so he couldn't shoot at us again and see the lights." As the car went past his house he "shot at the back of it. Pointed the gun at it and shot at the back of it.... Because I got kids and I can't have nobody shooting towards my house and other people come there too."

Raines stated that when he fired he was in fear of his own safety and that of others but admitted that the people in the car had not done anything or taken any action other than "riding by on that road." Ms. Quates and Billy Kendrick had told him that Neese was going to try to kill him.

Raines lived on a public dirt road which connects County Road 29 with Highway 83 in Conecuh County. Raines' father lived about two and one-half miles from Raines. Theirs were the only residences on the road. A deputy sheriff testified that on the night of the shooting the road became impassable about one-half mile past Raines' trailer because "it was wet and the log trucks had been hauling logs and it had deep ruts in the road."

Neese testified as a defense witness. He stated that he went past Raines' trailer "just to see if her (Quates') truck was there" because Quates had told him that Raines was "setting him up." He admitted firing his pistol "down that dirt road below the house" but denied shooting at the trailer and stated that he had never threatened to kill Raines.

Stinson rode with Neese the second time he went to Raines' trailer because Stinson knew where Raines lived and could identify Quates' truck. Neese testified that they were past the trailer, riding down a public road when "somebody opened fire on us."

A person may use physical force "to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force." Alabama Code § 13A-3-23(a) (1975) (emphasis added). In the circumstances of this case, there is no evidence to show that Raines fired in response to the imminent use of deadly physical force.

"Imminent danger. In relation to homicide in self-defense, this term means immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law. Or, as otherwise defined, such an appearance of threatened and impending injury as would put a reasonable and prudent man to his instant defense." Black's Law Dictionary 676 (5th ed. 1979).

See also C. Gamble, McElroy's Alabama Evidence § 457.02(1) (3rd ed. 1977), which states:

"(b) 'Actual imminent peril' means that the accused, at the time he did the homicidal act, was in danger of immediately being killed or seriously harmed in body by the deceased. This is true though the accused neither reasonably nor honestly believed himself to be in such danger.

"(c) 'Apparent imminent peril' means that the circumstances and conditions perceived by the accused at the time he did the homicidal act were such as would have reasonably impressed a reasonable person that the accused was in danger of immediately being killed or seriously harmed in body by the deceased; and that the accused honestly believed himself to be in such danger though, in truth, he was not in such danger."

"The danger, or apparent danger, must be present, not prospective,--not even in the near future.... Human life must not be sacrificed under the apprehension of a prospective probable danger even in the near future." Dolan v. State, 81 Ala. 11, 1 So. 707, 712 (1887). A mere fear, though well-grounded, of personal violence about to be committed, is no justification unless the danger appears to be imminent or threatening. See Dupree v. State, 33 Ala. 380 (1859). "[T]he defendant must entertain an honest belief that he is in actual danger at the time he strikes." Owen v. State, 17 Ala.App. 29, 81 So. 365 (1919).

Threats of violence accompanied by an overt act may justify one assaulted in acting more promptly on the appearance of things under the doctrine of apparent imminent peril. Daniel v. State, 14 Ala.App. 63, 68-9, 71 So. 79, cert. denied, Ex parte Daniels, 196 Ala. 700, 72 So. 1019 (1916). Although the law recognizes the right of one who has received threats to "act more promptly and on slighter overt act or demonstration than it would in the absence of such proof", this principle is confined exclusively to defensive measures. Langham v. State, 12 Ala.App. 46, 52, 68 So. 504, cert. denied, 192 Ala. 687, 68 So. 1019 (1915).

"It is also a well-established doctrine that when the deceased has made threats against the defendant, and which have been communicated to him, he is not thereby authorized to commence an attack or to act upon said communicated threats until the deceased has committed some overt act or made some hostile demonstration; but in such case the law allows the threatened party to act with greater dispatch and upon a perhaps slighter overt act than is required on the part of a defendant who was not threatened by the deceased, or between whom and the accused there was no bad blood or ill will. The mere fear of an attack will not justify action on the part of the defendant; and he cannot avail himself of communicated threats until he first shows some overt act or hostile demonstration on the part of the deceased which would be calculated to reasonably impress upon him the bona fide belief that he was in imminent peril. This does not mean that the supposed facts generating the belief must be real; for they may be appearances only, and yet justify as prompt action as if they were real.

"But this principle is confined to defensive measures. It furnishes no excuse or palliation for aggressive action, nor when the difficulty is brought on or sought by the accused." Beasley v. State, 181 Ala. 28, 61 So. 259, 260 (1913) (citations omitted).

The overt act or hostile demonstration need not have amounted to a felonious assault. George v. State, 145 Ala. 41, 40 So. 961 (190...