White v. State

539 So. 2d 445, 1988 Ala. Crim. App. LEXIS 710, 1988 WL 143251
Court of Criminal Appeals of Alabama·Decided November 10, 1988·No. 3 Div. 904·Published·Cited by 2 cases

Opinion

TYSON, Judge.

Rosetta White was charged in a two-count indictment with intentionally and [446]*446recklessly causing the death of Tommy Rodgers in violation of § 13A-6-2, Code of Alabama (1975). The jury found the appellant guilty of the lesser-included offense of manslaughter. The trial judge sentenced the appellant to ten years’ imprisonment in the penitentiary.

Because the appellant does not raise the issue of sufficiency of the evidence on appeal, the facts will be summarized briefly.

On the night of August 7, 1987, around midnight, the decedent, Rodgers, and Roosevelt Turner walked out onto the porch of the “skin house” where they had been drinking and gambling. When they walked out they saw the appellant and Cynthia Simmons standing on the porch. The decedent and Turner began walking down the steps. At this point the decedent or the appellant said, “Son of a bitch, lucky you ain’t dead.” (R. 21, 81) and “Motherfucker you supposed to be dead.” (R. 81) The decedent then stopped and stood still for a moment. Turner testified that he told the decedent, “Let’s go, let’s leave it alone.” (R. 36)

Testimony showed that the decedent went towards the appellant to grab her because he knew she had a gun in her purse. They began to scuffle and in the process three to six shots were fired. Testimony from the State’s witnesses tended to show that the appellant began the shooting. One bullet hit Mr. Turner in the leg. The appellant was also hit in the stomach by one of the bullets. As a result, she has to wear a colostomy bag. The decedent was hit with two bullets. After he was shot, he went down the steps and fell down.

Officer Jimmy Lloyd Pace of the Montgomery Police Department said he responded to a call at 570 Pleasant Avenue on the night in question. When he arrived, he found the decedent Rodgers lying on the ground next to a truck. There was a revolver a few feet away from him. The decedent died as a result of á gunshot wound to the abdomen.

The appellant, White, said that she was standing on the porch talking when the decedent came out of the house. She thought he went past her and down the steps. When she realized that he had not, she turned to face him. She stated that he told her, “You a lucky mother-fucking lady to be alive.” (R. 177). She asked him what he meant and he repeated his statement.

Then the decedent asked, “What you got in that purse?” (R. 177) and proceeded to break the purse strap and get the gun out. The appellant testified that the decedent, Rodgers, reached for the gun, pulled the trigger and shot her in the stomach. She continued to struggle with him to keep him from shooting her again. Appellant said that she “got real weak and just let go of his hand and everything let go.” (R. 177). She then went inside the house and the paramedics came.

The appellant denied having any intent to kill Tommy Rodgers and testified that, had she intended to kill Rodgers, she would have had several opportunities prior to the actual shooting. She said her actions were an attempt to keep him from shooting her a second time. She stated that she never pulled the trigger but held her hands on his hands, which held the gun.

I

The appellant contends that the trial court erred when it instructed the jury that a reasonable doubt is a doubt for which one must find a “real”, “.substantial” or “bona fide” reason.

The appellant argues that requiring the jury to find a “real”, “substantial” or “bona fide” reason to doubt is a substantial doubt or something greater than a reasonable doubt. The appellant asserts that this results in an impermissible reduction of the State’s burden of proving guilt beyond a reasonable doubt. We disagree.

This Court has previously been faced with this very issue. In Williams v. State, 455 So.2d 210, 211 (Ala.Crim.App.1984), the trial court instructed the jury that a reasonable doubt was a doubt based on a “real reason, a substantial reason.”

In Williams we held that, “While the instruction in this case may be subject to criticism, it is not erroneous ... When read [447]*447in conjunction with the entire oral charge, the objectionable portions were intended to impress on the jury the distinction between a reasonable doubt and a vague, imaginary or possible doubt, and do not constitute error as to require a reversal.” 455 So.2d at 212 (citations omitted). See also Baker v. State, 477 So.2d 496 (Ala.Crim.App.1985), cert. denied, 475 U.S. 1029, 106 S.Ct. 1231, 89 L.Ed.2d 340 (1986).

After reviewing the court’s oral charge to the jury, as a whole, it is clear that the trial court did not commit reversible error in this instance. We find that the use of “real” and “substantial” to modify “reason” does not change the standard of proof, as appellant alleges, but rather, serves to help explain the difficult concept of reasonable doubt to the jury. Our holding is not altered by the additional use of the modifier “bona fide” since we find it to be synonymous with “real”. Thus we conclude that the trial court properly instructed the jury on the phrase “reasonable doubt.”

II

The appellant asserts that the trial court committed reversible error when it refused to allow into evidence testimony which would show the victim’s bad reputation for violence.

Specifically, the appellant argues the trial court incorrectly refused to allow John A. Adams, the owner of the house where the decedent, Rodgers, was killed, to testify that he had previously warned the deceased not to engage in violent arguments on the premises. The following portion of the record is relevant to the issue:

“BY MR. SIMPSON:
“Q. Tell us your name, please?
“A. John Alexander Adams.
“Q. Mr. Adams, who owns the house at 570 Pleasant Avenue?
“A. I do.
“Q. Were you there back on August 7th, when Tommy Rodgers died?
“A. Yes.
“Q. Did you see Tommy that night?
“A. Yes.
“Q. Did you talk to him that night?
“A. Yes.
“Q. What did you talk to Tommy about that night?
“A. His conduct.
“Q. What about his conduct?
“BY MR. MADDOX: I object, judge this is hearsay, hasn’t been shown to be relevant.
“BY THE COURT: Step in there, ladies and gentlemen, let’s see what this witness has to say.
(Jury out)
“BY THE COURT: All right.
“BY MR. SIMPSON: Your Honor, I expect him to testify — .
“BY THE COURT: Just ask him.
“BY MR. SIMPSON:
“Q. What did you talk to him about,— what type of conduct was it that you needed to talk to Tommy about that night?
“A. About three weeks prior to that incident, he had been arguing with another man up there, and I had talked to him about his conduct before I would let him come back in the house.
“Q.

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White v. State, 539 So. 2d 445, 1988 Ala. Crim. App. LEXIS 710, 1988 WL 143251 (Ala. Ct. App. 1988).

539 So. 2d 445 (White v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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