State v. Tribble
| Decision Date | 29 April 1981 |
| Docket Number | No. 79-139-C,79-139-C |
| Citation | 428 A.2d 1079 |
| Parties | STATE v. Bernard A. TRIBBLE. A. |
| Court | Rhode Island Supreme Court |
As darkness approached in the late afternoon of December 15, 1976, the defendant, Bernard A. Tribble (Tribble) shot and killed Michael Wilson (Wilson) at the corner of West Broadway and Kingston Avenue in the city of Newport. The next day Tribble, accompanied by his lawyer, turned himself in to the Newport police. On March 29, 1977, a Newport County grand jury indicted Tribble on one count of murder in the first degree. 1 At trial, a justice of the Superior Court granted defendant's motion for judgment of acquittal on the murder count. However, the state was allowed to continue the prosecution on the lesser included offense of manslaughter, on which the jury subsequently returned a verdict of guilty. The defendant now appeals from the judgment of conviction.
At trial, Tribble admitted that he did in fact shoot Wilson; however, he asserted that when he did so, he was acting in self-defense and that, therefore, he should have been totally absolved from criminal liability in the death of Michael Wilson. It would be well at this point, in light of defendant's assertion of the defense of self-defense, to examine the events leading up to the December 15, 1976 shooting incident.
Tribble testified that a few weeks prior to the incident in question he was unemployed and that his unemployment compensation benefits had run out. Because of Tribble's financial predicament, two of his friends had offered to "put him up" in their apartment on Stewart Street in Newport until he went back to work in January. Tribble accepted their offer. One night shortly after Tribble had moved into the Stewart Street apartment, Wilson and a companion, James Carter (Carter) paid Tribble a "visit" there. 2 During this visit, Tribble testified, Wilson accused him of stealing some stereo equipment that allegedly belonged to Carter. 3 Wilson also, during this encounter, threatened to "take care" of Tribble and to kill his mother, brother, and children if he did not return the stereo.
Tribble did not encounter Wilson again until the day of the shooting when he saw him several times. The first time he saw Wilson that day was at ten or eleven o'clock that morning. As Tribble was walking to the Stewart Street apartment, he saw Wilson driving a car containing Carter and another passenger, Harold Massey (Massey). Tribble testified that as they rode by him, Carter apparently said something to the other occupants of the car and then pointed at him from inside the car.
The next encounter occurred later in the day as Tribble walked to his girlfriend's apartment on Hall Avenue. He said he saw the same car he had seen earlier in the day move down Hall Avenue and park in front of his girlfriend's apartment. Again, he saw Carter say something to the other two persons in the car, whereupon Wilson started up the car and continued down the street toward him. As the car passed him, Tribble testified, Carter began pointing at him and talking to the other two.
Tribble remained at his girlfriend's apartment for several hours even though she was at work, apparently because he feared that Wilson and his friends might break into the apartment. He decided later, however, to return home. On his way, Tribble met a friend of his who walked with him to his apartment. On their way, they observed the Wilson vehicle following them at close range, as if to monitor their progress.
Tribble testified that he had been afraid of Wilson ever since the "visit" Wilson had paid him at the Stewart Street apartment and that his fear was heightened by the events of December 15, 1976. This apprehension that Wilson might harm him or his girlfriend prompted him, once home, to get the gun which one of his roommates kept at the apartment. Aware that his girlfriend would soon return home from work, Tribble went back to her apartment with the gun. When his girlfriend returned from work, he told her to go immediately to her mother's house. He did not explain why this was necessary, nor did he explain to her the presence of the gun. On her way to her mother's house, Tribble's girlfriend dropped him off in the vicinity of the Stewart Street apartment, and he began walking the rest of the way home.
As Tribble neared the intersection of Kingston Avenue and West Broadway, the car driven by Wilson and still containing Carter and Massey rounded the corner from West Broadway onto Kingston Avenue. At trial, there was conflicting evidence as to whether Tribble hailed the car or whether Wilson stopped the car on his own volition. At any rate, Wilson did pull the car over and parked it on Kingston Avenue. Tribble then approached the car and had words with one of its occupants. According to Tribble, he spoke with Carter and told him to leave him alone. Carter and Massey testified that Tribble spoke to Wilson and that Tribble told Wilson to get out of the car. After the conversation had ended Tribble resumed walking home. At that point, Wilson got out of the car and began walking toward Tribble. Tribble testified that as Wilson reached the rear of the car, he stopped and began arguing with him and threatening him. Then, Tribble continued, Wilson started "coming at me swinging his hands." Tribble then saw Wilson put his right hand behind his back as he was coming at him. It was at this point that Tribble shot Wilson, who, according to the state medical examiner, died the next morning as a result of a gunshot wound in the area of his abdomen.
The law relating to self-defense proclaims that one may defend himself whenever he reasonably believes that he is in imminent danger of bodily harm at the hands of another. A person harboring such a fear need not wait for the other to strike the first blow; however, such person must use only such force as is reasonably necessary for his own protection. The permissible degree of force used in defense of oneself varies with the particular set of circumstances under which he acts, but under no set of circumstances may one apply more than that degree of force necessary to prevent bodily injury. If one uses "excessive" force, he is to be held accountable for his actions. Martin v. Estrella, 107 R.I. 247, 253, 266 A.2d 41, 46 (1970). 4
When a defendant asserts the defense of self-defense, he may introduce evidence of the victim's reputation for violent behavior either for the purpose of showing the reasonableness of his fear of imminent bodily harm or for the purpose of showing that the victim was the aggressor. Id. at 254, 266 A.2d at 47. Toward this end, defendant in the instant case elicited testimony, both upon direct examination of his own witnesses and upon cross-examination of the prosecution's witnesses, that Wilson had a reputation for violence in the community. Carter testified on cross-examination that Wilson would fight if he had to and that "some" said he was a fighter. Massey also testified that Wilson was "a fighter." Victor Jenkins, a witness who heard the firing of the gun, was called by the state. He testified on cross-examination that Wilson was often in trouble with the police. One of defendant's witnesses also testified to the same effect. Harry B. Casey, sheriff of Newport County, testified that Wilson was an "extremely hot-tempered, violent young boy."
In addition, defendant's counsel sought to adduce through the testimony of Tribble himself that Tribble was aware of a specific act of violence committed by Wilson against a third person, one Emmett Turner (Turner). The entire line of inquiry concerning Turner, however, was objected to by the prosecutor and the objection was sustained by the trial justice. Defense counsel thereupon made an offer of proof, during which he stated:
The trial justice's denial of the admission of the proffered evidence forms the basis of defendant's appeal.
On appeal, the state contends that the trial justice properly excluded the proffered evidence and in support of this contention, the state relies primarily upon State v. Infantolino, 116 R.I. 303, 355 A.2d 722 (1976). In that case, the defendant was convicted, among other things, of second-degree murder for shooting another man after the two were earlier involved in a barroom brawl. The defendant asserted that when he shot the victim, he was acting in self-defense. We found that
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...reasonably necessary in the circumstances to protect themselves." State v. Quarles, 504 A.2d 473, 475 (R.I.1986) (citing State v. Tribble, 428 A.2d 1079, 1082 (R.I.1981)). (Emphasis "Before resorting to the use of deadly force, the person attacked must attempt retreat if he or she is consci......
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