86 So. 3d 1088
Ala. Crim. App.2011Background
- Bole convicted of manslaughter (13A-6-3) based on one prior felony; sentence 40 years plus $50 crime victim assessment.
- On July 25, 2008, Andra Johnson and Tiffany Smith were in Johnson's car; Bole joined for ~20 minutes and carried a pistol.
- In the car, Bole sat in back with the gun, later moved to front; he joked, making a racial remark when Smith exited.
- Johnson was shot in the head at a stop sign; Bole panicked, dragged Smith into bushes, and threatened her; Johnson's body was later found.
- Autopsy: Johnson died of a gunshot wound; gun was fired from at least 18 inches away.
- Bole testified the shooting was an accident and that he was close friends with Johnson; he claimed he lost balance and the gun fired.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of 404(b) evidence about prior firearm conviction | State sought to show knowledge of firearms via prior conviction. | Stipulation limited 404(b) evidence to admission and knowledge; detailed entries exceeded scope. | Admissible under Rule 404(b) for knowledge and admission; details within permitted scope. |
| Waiver/preservation of Rule 609 issue regarding child at scene | Rule 609 violation claimed for child’s presence. | Waived; no timely objection on appeal. | Waived/precluded from appellate review. |
| Transcript of defendant's statement and jury use | Transcript inaccuracies affected jury deliberations. | Transcript was flawed; need adverse ruling and Mistrial review. | Issue not preserved; no adverse ruling; curative instructions given were deemed insufficient for review. |
| Vindictive or biased sentencing claim | Sentence allegedly vindictive for going to trial. | No preservation of specific grounds; not supported by facts. | Not preserved; even if reviewable, claim meritless given facts and context. |
| Application of firearm-enhancement statute (13A-5-6(a)(5)) | Enhancement appropriate due to use of firearm in felonious act. | McCree and related authority limit when enhancement applies. | Enhancement proper under Mays; facts align with reckless/intentional use; affirmed. |
Key Cases Cited
- Ex parte McCree, 554 So. 2d 336 (Ala. 1988) (firearm-enhancement requires underlying felony with intentional use; limited scope for manslaughter facts)
- Mays v. State, 607 So. 2d 347 (Ala. Crim. App. 1992) (facts support application of firearm-enhancement in reckless manslaughter case)
- Bush v. State, 695 So. 2d 70 (Ala. Crim. App. 1995) (courts have broad discretion on admissibility of collateral crimes; Rule 404(b) exceptions apply sparingly)
- Bradley v. State, 577 So. 2d 541 (Ala. Crim. App. 1990) (test for admissibility of 404(b) evidence: relevance to material issue)
- Gamble v. State, 791 So. 2d 409 (Ala. Crim. App. 2000) (liberal relevancy standard for probative value of evidence)