Opinion
CR-21-0263
02-10-2023
Zhanna Shaye BOLLING v. STATE of Alabama
Larry R. Grissett, Opp, for appellant. Steve Marshall, att’y gen., and Laura Irby Cuthbert, asst. att’y gen., for appellee.
Larry R. Grissett, Opp, for appellant.
Steve Marshall, att’y gen., and Laura Irby Cuthbert, asst. att’y gen., for appellee.
McCOOL, Judge.
Zhanna Shaye Bolling appeals her conviction for murder, a violation of § 13A-6-2, Ala. Code 1975, for which she was sentenced to 30 years’ imprisonment.
Facts and Procedural History
On April 5, 2019, Sgt. Gregory Allen McGraw of the Covington County Sheriff’s Office responded to a dispatch regarding "[a] gentleman in the street hollering for help." (R. 127.) When Sgt. McGraw arrived at the scene, he found Ed Foster lying "in the middle of the street" "kind of in the fetal position," and there was "a large amount of blood pooled around him." (R. 128.) According to Sgt. McGraw, Foster was in "a large amount of pain" and could barely speak (R. 130), but Foster was able to tell Sgt. McGraw that he had been shot inside his house, and there was a "blood trail" that led from the street to the front porch of Foster’s house and continued into the house. (R. 132.) After calling for an ambulance, Sgt. McGraw went into Foster’s house to secure the residence and to "make sure … there’s not a gunman inside" (R. 131), but no one was inside the house.
Police officer Kyle Adams of the River Falls Police Department also responded to the dispatch and arrived while Foster was still lying in the street in front of his house. Officer Adams observed "one gunshot wound to the side of [Foster’s] head" and "a lot of blood loss on the ground," and, according to Officer Adams, Foster "was clammy" and "had a whitish/purplish look to his face, not a shiny, black appearance like he normally had." (R. 148.) Officer Adams asked Foster if he knew who had shot him, and Foster told him that it was Bolling. According to Officer Adams, Foster’s voice "was very faint," and Officer Adams "could tell [Foster] was in pain." (R. 149.)
Sheriff Blake Turman of the Covington County Sheriff’s Office also responded to the scene but arrived after Foster had been transported to a hospital. Sheriff Turman then went to the hospital, where he and Foster had a brief conversation while Foster was being prepped for surgery. Regarding that conversation, Sheriff Turman testified as follows:
"Q. What did [Foster] tell you happened?
"A. He said that
"[DEFENSE COUNSEL]: We’re going to object. I’m not sure he can testify. That’s hearsay.
"[THE STATE]: It’s a dying declaration.
"[DEFENSE COUNSEL]: He didn’t die.
"[THE STATE]: He did die or we wouldn’t be here for the charge of murder.
"[DEFENSE COUNSEL]: Not then.
"[THE STATE]: Caselaw is ample
"[DEFENSE COUNSEL]: Thirty – twenty-something days later.
"[THE STATE]: There’s ample caselaw that suggests that he doesn’t have to die immediately. He doesn’t even have to fake he’s dying.
"THE COURT: Overruled.
Q. Go ahead. So tell us what he said.
"A. I asked him – I said, well, what took place, what happened. And he said that … [Bolling] had gotten a – gotten his gun out from under the bed. He went to – there was a struggle to take it away from her, and the gun went off.
"….
"Q. Okay. So he said [Bolling] went to get the gun out from under his bed?
"….
"A. Right.
"Q. And then he told you there was – he tried to get the gun from her?
"A. He did.
"Q. And there was a struggle.
"A. There was a struggle. The gun discharged.
"Q. And did he take it like a man? Did he fall down? Did he say?
"A. He fell down.
"Q. All right. And then what did he say happened next?
"A. He said that … she had shot him again in the head.
"Q. Okay. So he told you that after he fell down that she stood there and shot him again in the head?
"A. Yes, he did."
(R. 158-60.) Bolling did not dispute that she had shot Foster, but in a statement she provided to the police, she claimed that she had accidentally shot Foster while preparing to defend herself from what she believed to be an imminent attack.
Foster died on April 27, 2019 – approximately three weeks after he was shot – and Dr. Stephen Boudreau, a state medical examiner with the Department of Forensic Sciences, conducted an autopsy. Dr. Boudreau testified that he observed three gunshot wounds on Foster’s body, including one on his head, and an X-ray revealed "small fragments of bullet in [Foster’s] brain." (R. 279.) Regarding the cause of death, Dr. Boudreau testified as follows:
"Q. And did you find anything that you would attribute as being the cause of death other than those gunshot wounds? "A. Well, he actually died as a result of pneumonia, but he got the pneumonia because he was shot. Even the wound in his am could have completely disabled him to the point where he died. This is an elderly man. He was 71…. This … man … was shot badly in one am. His arm was broken. And the orthopedic surgeons had to go in. Plus, he was shot in the head.
"When you’re old and you’re injured, he may not have been able to recover from the gunshot wound to his am, much less the shot to his head. As a result, he does not regain his ability to act in a way that he would have before he was shot. He can’t clear his secretions from his lungs, and he gets pneumonia.
"Back a million years ago when I was a general practitioner, we used to call pneumonia the old man’s friend, because what would happen is you would get elderly and old and you would get pneumonia and die in a peaceful way. So it’s – for him to have died directly of pneumonia is not surprising. Like I said, even the am wound could have been a fatal issue for this man, much less a wound to his head.
"Q. But with all that said, there’s no doubt in your mind that he died because he was shot three times.
"A. Correct.
"Q. Now, but for being shot, he was an otherwise healthy man as far as you could tell?
"A. Well, he had some heart disease. He’s 71. He had hypertensive heart disease. He had some hardening of the arteries to his heart. You know, … he still had some native disease. But he died as a result of the gunshot wounds."
(R. 280-81.)
Discussion
Bolling raises four claims on appeal. We address each claim in turn.
I.
[1] Bolling argues that the trial court erred by denying her motion for a judgment of acquittal because, she says, the State failed to prove that Foster died as a result of his gunshot wounds. In support of that claim, Bolling argues that Dr. Boudreau’s testimony indicated that Foster died as a result of pneumonia. Bolling correctly notes that Dr. Boudreau testified that Foster "actually died as a result of pneumonia," but Dr. Boudreau also testified that Foster "got the pneumonia because he was shot." (Emphasis added.)
Section 13A-2-5(a), Ala. Code 1975, provides that "[a] person is criminally liable if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was sufficient to produce the result and the conduct of the actor clearly insufficient." Here, even if Foster ultimately died as a result of pneumonia, Dr. Boudreau testified unequivocally that Foster "got the pneumonia because he was shot." In other words, the evidence indicated that Foster’s death "would not have occurred but for [Bolling’s] conduct." § 13A-5-2(a). Thus, the State presented evidence sufficient to establish that Bolling was criminally liable for Foster’s death, and, consequently, the trial court did not err by denying Bolling’s motion for a judgment of acquittal and submitting the case to the jury. See Dill v. State, 600 So. 2d 343, 359 (Ala. Crim. App. 1991) (citing § 13A-2-5(a) in holding that there was sufficient evidence to sustain the defendant’s conviction where two physicians testified that the victim died as a result of complications from a gunshot wound but where the victim did not die until months later when he "pull[ed) out his feeding tube"). See also Keaton v. State, 375 So. 3d 44, 92 (Ala. Crim. App. 2021) (" ‘The wound or wounds inflicted by a defendant need not be the sole cause of death, only a partial cause, or a contributing factor that accelerated death. The fact that there are other contributing causes of death does not prevent the wound or wounds inflicted by the defendant from being the legal cause of death – the other contributing causes of death may precede, be synchronous with, or follow the commission of the offense charged." (quoting Carden v. State, 621 So. 2d 342, 350 (Ala. Crim. App. 1992))).
II.
[2] Bolling argues that the trial court erred by allowing Sheriff Turman to testify to the statements Foster made at the hospital. As noted above, the State argued that Foster’s statements were admissible under Rule 804(b)(2), Ala. R. Evid., which provides that the rule prohibiting the admission of hearsay does not exclude "[a] statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant’s impending death." Bolling argues on appeal that Foster’s statements to Sheriff Turman did not qualify as a dying declaration because, she says, the record "is void of any evidence that Foster thought he was going to die." (Bolling’s brief, p. 24.) We disagree.
"Rule 804(b)(2), Ala. R. Evid., provides an exception for the statement of an unavailable witness when the statement was made under the belief that death was imminent, defined as: ‘A statement made by a declarant while believing that the declarant’s death was imminent, concerning the causes or circumstances of what the declarant believed to be the declarant’s impending death and offered in a criminal case.’
" ‘It is not indispensable that the declarant should have said that he believed that he must or would die soon, as such belief may in the circumstances be inferred from his condition and his conduct. In determining whether the declarant believed that death was imminent, the trial court may look to statements of the deceased, the nature of his wounds, his weakness, and all the circumstances tending to show the deceased’s state of mind at the time.’
"O’Cain v. State, 586 So. 2d 34, 37 (Ala. Crim. App. 1991) (internal citations omitted).
" ‘A dying declaration is a statement by a person who believes that death will certainly occur soon. The declarant must be gripped [by] that despair of life which is naturally produced by an impression of almost dissolution, a dissolution so near as to cause all motives of falsehood to be superseded by the strongest inducements to strict accuracy. It has been said that the declarant, when making the statement, must have been in settled, hopeless expectation of impending death. " ‘It must be emphasized, however, that it is not indispensable that the declarant have expressed a belief that death was imminent. Such belief may, in the circumstances of the case, be inferred from the declarant’s statements, condition or conduct. Additionally, the declarant’s sense of impend
ing death may be proven through the conduct or statements of those around the declarant. Whether the circumstances give rise to an inference that the declarant sensed impending death is a preliminary determination for the trial judge. If the judge concludes that the facts are sufficient from which to infer the prerequisite state of mind, it is then for the jury to decide what weight to accord the admitted dying declaration.’
"Gamble and Goodwin, McElroy’s Alabama Evidence, 248.01(1) (6th ed. 2009).
" ‘Whether the declarant believed that death was certain to occur soon is for the determination of the trial court, reversible on appeal only if the evidence did not support such a finding. The circumstances of each case will show whether the requisite consciousness existed; and it is poor policy to disturb the ruling of the trial judge upon the meaning of such circumstances.’
"O’Cain V. State, 586 So. 2d 34, 37 (Ala. Crim. App. 1991) (internal citations and quotation marks omitted)."
Chapman v. State, 196 So. 3d 322, 334 (Ala. Crim. App. 2015) (emphasis added).
In this case, when police officers found Foster lying in the street, he had suffered a gunshot wound to his head, was bleeding profusely, was in "a large amount of pain," was struggling to speak and was doing so in only a "very faint" voice, and "was clammy" and "had a whitish/purplish look to his face," unlike the "shiny, black appearance [that] he normally had." When Sheriff Turman spoke with Foster at the hospital shortly thereafter as Foster was being prepped for surgery, Foster’s head "was wrapped in bandages which were soaked in blood" (R. 157), and Sheriff Turman testified that Foster "was scared" and that his "voice was rather shaky." (R. 158.) Those facts are sufficient to support an inference that Foster believed his death was imminent, despite the fact that he never expressly declared such a belief. Thus, this Court will not disturb the trial court’s determination that Foster’s statements to Sheriff Turman qualified as a dying declaration. See Chapman, 196 So. 3d at 334 (holding that there was sufficient evidence upon which to admit the victim’s statement as a dying declaration where the victim was "bleeding profusely[,] [h]is "breathing was labored, and it hurt him to speak").
[3] We note that Bolling appears to suggest that Foster’s statements to Sheriff Turman did not qualify as a dying declaration because Foster lived approximately three weeks after making the statements. However, a dying declaration stems from the declarant’s belief that his death is imminent, and the fact that he does not die soon after making the declaration does not remove the statement from the dying-declaration exception to the hearsay rule. See Gamble and Goodwin, McElroy’s Alabama Evidence, § 248.01(4) (6th ed. 2009) ("If the trial judge finds that the declarant, when making the statement, believed that death was certain to occur soon, the declaration is admissible even though the declarant lives thereafter."); and Burton v. State, 39 Ala. App. 332, 340, 101 So. 2d 564, 571 (1957) (citing a case in which "a declaration of a man who lingered two months" before dying was admissible as a dying declaration).
III.
[4] Bolling argues that the trial court erred by excluding a toxicology report that, she says, indicated that Foster "could have had marijuana in his system on the day of the shooting." (Bolling’s brief, p. 25.) When Bolling offered the toxicology report for admission, the State objected on the ground of relevancy, and the trial court sustained the objection on that basis. (R. 288.) Citing Seals v. State, 282 Ala. 586, 213 So. 2d 645 (1968), Bolling appears to argue that the toxicology report was admissible under the public-record exception to the hearsay rule. See Rule 803(8), Ala. R. Evid. However, even if Bolling is correct - and we do not suggest that she is – evidence that qualifies as an exception to the hearsay rule must still be relevant to be admissible. See Rule 402, Ala. R. Evid. ("Evidence which is not relevant is not admissible."); and Pope v. State, 539 So. 2d 1101, 1102 (Ala. Crim. App. 1988) (noting that records that qualify under the business-record exception to the hearsay rule "must still be relevant in order to be admissible" (citation omitted)).
On appeal, Bolling makes no overt attempt to demonstrate that the trial court’s relevancy ruling was incorrect and, moreover, has not presented this Court with any authority pertinent to the ruling. The only argument Bolling makes that can arguably be construed as a challenge to the trial court’s relevancy ruling is the following one-sentence statement: "[The fact that Foster had marijuana in his system on the day of the shooting] could have effected [sic] his cognizance during the shooting [and] also at the hospital when Sheriff Turman took his statement." (Bolling’s brief, p. 25.) However, in addition to the fact that Bolling cites no authority that is pertinent to the trial court’s relevancy ruling, she makes no attempt to demonstrate how Foster’s cognizance at those times had any bearing on a material issue at trial, and it is not the function of this Court "to make and address legal arguments for a party." Marshall v. State, 182 So. 3d 573, 620 (Ala. Crim. App. 2014) (citations omitted). Thus, for that reason alone, the trial court's ruling excluding the toxicology report is affirmed. See Mantiply v. Mantiply, 951 So. 2d 638, 653 (Ala. 2006) ("Because Mallory presents virtually no argument and absolutely no authority in support of this issue, we affirm the judgment of the trial court as to this issue.").
Moreover, we fail to see the relevancy of Foster’s cognizance at the time of the shooting or at the time of his statements to Sheriff Turman. It was undisputed that Bolling shot Foster, and the issue for the jury to decide was whether Bolling was guilty of murder or had shot Foster in self-defense. Foster’s cognizance at the time of the shooting, i.e., his awareness or knowledge of what was happening, was not relevant to those determinations. See Parris v. State, 885 So. 2d 813, 835 (Ala. Crim. App. 2001) (holding that "the amount of drugs in the victim’s system" at the time he was shot was not relevant because the issue was whether the defendant was justified in shooting the victim, "not whether the victim was intoxicated or impaired" at that time). Likewise, Foster’s cognizance at the time of his statements to Sheriff Turman, in which he identified Bolling as the shooter, was not relevant because his identification of the shooter was not at issue; it was undisputed that Bolling was the shooter. Thus, we find no abuse of discretion in the trial court’s determination that the toxicology report was not relevant and was therefore inadmissible. See Yeomans v. State, 898 So. 2d 878, 894 (Ala. Crim. App. 2004) ("[T]rial courts have broad discretion in determining whether evidence is relevant, and a court’s determination will not be reversed unless the decision constituted an abuse of discretion.").
IV.
[5, 6] Bolling argues that the trial court erred when it did not give her three requested jury instructions on criminally negligent homicide, which she submitted in writing either before or during trial. (C. 194-97.) However, at the charge conference, Bolling unequivocally stated that she was withdrawing her request for those three charges. (R. 328.) As this Court has previously stated: "[T]he appellant cannot request a jury instruction and then contend that the instruction was in error. The error in such a case is invited error." Blackmon v. State, 7 So. 3d 397, 428 (Ala. Crim. App. 2005) (citation omitted). By the same token, a defendant cannot withdraw a requested jury instruction and then contend on appeal that the failure to give the instruction was error. See Robitaille v. State, 971 So. 2d 43, 59 (Ala. Crim. App. 2005) (" ‘Under the doctrine of invited error, a defendant cannot by his own voluntary conduct invite error and then seek to profit thereby.’ " (quoting Phillips v. State, 527 So. 2d 154, 156 (Ala. 1988))). Thus, because Bolling withdrew her requested jury instructions on criminally negligent homicide, any error in not giving those instructions would be invited error and does not entitle Bolling to relief.
Conclusion
Based on the foregoing, Bolling’s conviction and sentence are affirmed.
AFFIRMED.
Windom, P.J., and Kellum and Minor, JJ., concur. Cole, J., concurs in the result.