Weaver v. State, 1 Div. 146

• Citation: 402 So.2d 1099
• Decision Date: 04 August 1981
• Docket Number: 1 Div. 146
• Parties: W. T. WEAVER, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1099

402 So.2d 1099

W. T. WEAVER, Jr. v. STATE.

1 Div. 146.

Court of Criminal Appeals of Alabama.

Aug. 4, 1981.

Willis W. Holloway, Jr., Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.

DeCARLO, Judge.

Manslaughter in the first degree; ten years.

The evidence presented at trial was without conflict that the appellant shot "Poochie" Campbell, on May 21, 1978. The dispute was whether the appellant shot in self-defense.

The evidence presented by the State indicated that the victim, Willard "Poochie" Campbell, along with the appellant's wife and two children, and others, had been riding in a car in Pritchard, Alabama. When they reached Hale Drive in Pritchard, the appellant approached on a motorcycle. The appellant had a pistol in his hand, and as he neared the car he placed it at the nose of Ulmer Reed, the driver of the car. Appellant told Reed not to move, and then he turned to the side of the car where Campbell was sitting. While the others in the car were trying to get out, appellant fired into the car at Campbell. After shooting the victim several times, the appellant left on the motorcycle. According to Ulmer Reed, the victim did not say anything to the appellant prior to the shooting and he did not see the victim with a knife.

Darlene Jarman, who was present in the car at the time of the shooting, stated that the appellant came up to the car with a gun in his hand and shot twice. Ms. Jarman said the victim, Poochie Campbell, took out a knife when the appellant approached the car with a gun.

Detective T. C. James investigated the shooting at the scene. He observed the victim and found a knife in the back seat where the victim was slumped over. At the end of Sgt. James' testimony the State rested its case and the appellant made a motion to exclude the evidence on the grounds that the State had failed to prove a prima facie case.

The appellant testified in his own behalf that the Saturday prior to the shooting, the deceased had threatened to kill him. On the day of the shooting, the appellant said that the victim came at him with a knife before he ever pulled his gun to shoot.

The appellant also presented testimony from several witnesses, including law enforcement officers, who stated that the victim had a general reputation for carrying a knife and he was a violent, dangerous and blood-thirsty individual.

I

The appellant maintains that the court committed reversible error by not permitting him to show specific incidents illustrating the deceased's habit of "cutting people with a knife." In Shuler v. State, 56 Ala.App. 599, 324 So.2d 313, cert. denied, 295 Ala. 418, 324 So.2d 319 (1975), this court observed that inquiries concerning violent hostile acts by a victim toward someone other than the appellant were not admissible.

In Gamble, McElroy's Alabama Evidence, § 63.01(3), (3 Ed. 1977) we find the following:

"In some cases where the accused is relying on self-defense he will want to show that the victim had previously committed specific acts of violence towards other persons and that the accused knew of such acts. The purpose of such evidence will be to show the accused's reasonable apprehension of peril. The general rule is that such evidence is admissible if the person toward whom the violence was directed had a very close connection with the accused such that there would be reasonable apprehension of peril on the part of the accused. It is quite clear that such violence towards other persons is not admissible if it is remote in time or lacks any connection in circumstances with the accused." (Emphasis added)

In the present case, the specific acts shown by the appellant at a hearing out of the presence of the jury, occurred from one to ten years before the shooting in question, and only one incident involved a person who the appellant stated was related to him "a little bit." Therefore, under these circumstances, we believe that the court was correct in not permitting the appellant to show specific incidents of the victim's dangerous and violent nature. The evidence presented was remote in time and lacked any connection in circumstance with the appellant.

II

The appellant complains that the prosecutor made improper statements in the following portions of his closing argument:

"MR. COPELAND: * * * Also I submit to you that criminal laws are designed not so much for law abiding citizens of this community, but for people like Poochie Campbell and people like W. T. Weaver that they are going to their own

"MR. HOLLOWAY: Judge, I am going to object to that last remark, 'People like Poochie Campbell and people like W. T. Weaver,' and I will ask that that be included in the record, as injecting an element of character and things that have not been testified to.

"THE COURT: I will overrule the objection.

"MR. HOLLOWAY: I move for a mistrial.

"THE COURT: The Court will deny your motion. This is argument of counsel to the Jury.

"MR. COPELAND: That's what criminal laws range at, situations like this, and these are the kinds of people it's going to be applied to.

"MR. HOLLOWAY: Judge, I'm going to object to that again, about 'These are the kind of people it's going to be applied to,' and ask that that be included in the record. I again review my objection as to the interjection of character.

"THE COURT: Overruled.

"MR. HOLLOWAY: I move for a mistrial.

"THE COURT: The Court will deny your motion."

In its oral charge the trial court instructed the jury that argument of attorneys was not evidence in the case and that they alone were the sole judges of the facts. From the record:

"You have heard throughout the trial arguments of the lawyers to you. The opening arguments and the closing arguments of the lawyers to you. The Court will tell you, ladies and gentlemen of...