Asher Bragan Bole v. State of Alabama.

86 So. 3d 1088, 2011 WL 2094778, 2011 Ala. Crim. App. LEXIS 40
CourtCourt of Criminal Appeals of Alabama
DecidedMay 27, 2011
DocketCR-09-0608
StatusPublished
Cited by2 cases

This text of 86 So. 3d 1088 (Asher Bragan Bole v. State of Alabama.) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Asher Bragan Bole v. State of Alabama., 86 So. 3d 1088, 2011 WL 2094778, 2011 Ala. Crim. App. LEXIS 40 (Ala. Ct. App. 2011).

Opinion

BURKE, Judge.

The appellant, Asher Bragan Bole, was convicted of one count of manslaughter,1 a violation of § 13A-6-3, Ala.Code 1975. Based on one prior felony conviction, he was sentenced to 40 years’ imprisonment. Additionally, he was ordered to pay a crime victim assessment in the amount of $50.

[1090]*1090The evidence established that on the evening of July 25, 2008, Andra Johnson picked Tiffany Smith up from her home in Bessemer, and the two of them went to Johnson’s home in Center Point. Around the time they were to return to Bessemer, Johnson received a telephone call from one of Johnson’s friends, Asher Bole. Bole came over to Johnson’s home for about 20 minutes and the three then left to take Smith home to Bessemer.

Smith was not acquainted with Bole. She testified that as she was getting into the front passenger seat of Johnson’s vehicle, she saw that Bole was carrying a pistol. As Bole sat down in the backseat, he placed the pistol in his lap. There were no harsh words between the two men in the car; in fact they had made prior plans to go to a club together after they took Smith home.

At a stop sign near Smith’s house, Johnson stopped his vehicle to let her out, because Smith did not want her husband to know that she had been in the company of the two men. As Smith got out of the car, she saw Bole getting out of the backseat to ride in the front passenger seat. He had the pistol in his hand and jokingly said, “Give me your shit, nigger.” (R. 99.) The gun suddenly discharged and Johnson was shot in the head. Bole became nervous, panicked, and, according to Smith, gestured with the pistol for Smith to come to where he was standing. Bole grabbed Smith by the shirt and dragged her down the street. He pulled her into a bank of bushes, pointed the gun to her face and said, “[D]id you see what happened? Do you know me? Did you see this?” (R. 100.) Smith indicated that she had not, and Bole said that if she cooperated, she would be okay. Bole left Smith in the bushes and returned to Johnson’s Ford Explorer sport-utility vehicle. Smith ran to a nearby Conoco gasoline service station where she asked a woman to drive her back to the scene. When they arrived, Johnson’s body was in the middle of the road.

Bole was arrested near the scene; he later gave two statements admitting that he shot Johnson but that he did not intend to. He stated that he threw the gun in the bushes and was afraid to stay with the victim.

Autopsy results revealed that Johnson’s cause of death was a gunshot wound to the head, and that the handgun that inflicted the wound was fired from a distance of at least 18 inches.

Bole testified in his own defense. He stated that he shot Johnson but that it was an accident. He testified that he and Johnson were close friends and that the gun fired when he attempted to stand and lost his balance. Bole testified that after hearing a loud bang, he ran into some bushes. He stated that Smith followed him into the bushes to ask him what happened. He did not remember having the pistol in his hand when he was talking to Smith.

I.

On appeal, Bole argues that the trial court erred when it allowed the State to offer evidence of his prior conviction of shooting into an occupied dwelling, because the detailed evidence was outside the stipulation or agreement the parties had entered into before the trial. Bole argues that the State exceeded the limitation of the evidence to be allowed concerning this prior offense, specifically that he admitted to having committed it. In particular, Bole argues that the admission of evidence that a child was present at the scene of his prior offense violated Rule 404(b), Ala. R. Evid. and Rule 609, Ala. R. Evid.

[1091]*1091First we address Bole’s claim that the trial court committed reversible error when it allowed the State to delve into details of his prior conviction for discharging a firearm into an occupied dwelling as having violated Rule 404(b), Ala. R. Evid.

The record reveals that on September 9, 2009, the State filed a notice of intent to introduce evidence pursuant to Rule 404(b), Ala. R. Evid., notifying Bole that it intended to offer evidence that “on April 27, 2001, [Bole] pleaded guilty to Discharging a Firearm into an Occupied Building and was sentenced to Fifteen years to serve in prison.” (C. 40.) On September 15, 2009, immediately before trial, the State argued its motion to be permitted to offer the Rule 404(b) evidence, stating that proof of the prior offense would show Bole’s knowledge pertaining to the use and functioning of firearms and knowledge of the risk associated with them. After an extensive discussion on the record, the parties stipulated that the State would limit its Rule 404(b) evidence of Bole’s prior conviction to testimony that Bole had fired a gun into an occupied dwelling in order to show Bole’s knowledge of firearms and to testimony that Bole had admitted to having fired a gun into an occupied dwelling. The agreement also required Bole to refrain from offering evidence of the victim’s prior criminal convictions other than to allow testimony to show that the victim and Bole had met while in prison.

The following is the exchange regarding the stipulation between the attorneys and the court prior to trial:

“THE COURT: How do you intend to prove it [that he knows how to operate a gun]?
“[Prosecutor]: My way of doing it would be introducing the prior felony conviction. I don’t have to do it that way, but that’s the simplest way of doing it. With [Rule] 404(b) evidence I can prove — I can bring the witnesses from the earlier case if I want to. I’m not going to do it that way.
“THE COURT: I understand that.
“[Prosecutor]: If you want me to avoid a felony — mentioning a felony, I can get the detective to testify to it.
“THE COURT: To the—
“[Prosecutor]: I would basically ask are you aware that he has a prior conviction for shooting a firearm into an occupied dwelling. Yes. We don’t have to go into what he’s sentenced for, or anything like that, whether it’s a felony or anything like that. But because of the facts in this case knowledge of the firearm and how — what happens when you pull a trigger. He knows. And they deserve to know that he knows. It’s not common sense.”

(R. 8.)

Later in the exchange, the parties apparently come to an agreement as to what the stipulation will be:

“[Defense counsel]: Are you aware [Bole] admitted to firing a gun into an occupied — in the past [Bole] admitted to firing a gun into an occupied dwelling.
“[Prosecutor]: I will live with that, but that doesn’t carry the same weight as pleadfed] guilty. Admitted in court.
“THE COURT: I understand that. But the — are you offering it for the weight to show that he was convicted or the fact that he knows the—
“[Prosecutor]: Obviously that he knows. I don’t want to have to prove that again. Are they going to be able to go back and deny that he admitted doing that.
“[Defense counsel]: No.
“[Prosecutor]: Is that a factual issue that we fight?
[1092]

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Related

Clark v. State
166 So. 3d 147 (Court of Criminal Appeals of Alabama, 2014)
Bole v. State
86 So. 3d 1098 (Supreme Court of Alabama, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
86 So. 3d 1088, 2011 WL 2094778, 2011 Ala. Crim. App. LEXIS 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/asher-bragan-bole-v-state-of-alabama-alacrimapp-2011.