Tomlin v. State5/31/2002
ert. denied, 236 Ala. 213, 181 So. 709 (Ala. 1938).
As the State argued at trial, the circumstances surrounding David Tomlin's death were admissible at Tomlin's trial as tending to prove his motive for murdering Ricky Brune. Motive evidence is always admissible. Benefield v. State, 726 So. 2d 286 (Ala.Crim.App. 1997).
Moreover, Tomlin testified that the shooting involving his brother was accidental. Therefore, if the admission of this evidence was error it was rendered harmless by Tomlin's own testimony. "Testimony that may be apparently inadmissible may be rendered innocuous by subsequent or prior lawful testimony to the same effect or from which the same facts can be inferred." Yeomans v. State, 641 So. 2d 1269, 1272 (Ala.Crim.App. 1993). "The erroneous admission of evidence that is merely cumulative is harmless error." Dawson v. State, 675 So. 2d 897, 900 (Ala.Crim.App. 1995), aff'd, 675 So. 2d 905 (Ala. 1996).
Tomlin also argues that the trial court erred in allowing Henton to testify about the relationship between Ricky Brune and David Tomlin -- that Brune told him that he and David Tomlin had been friends. Specifically, he contends that this evidence was hearsay. Even if this evidence was hearsay, its admission was harmless. James Steven Heasling, the first defense witness, testified that he, Ricky Brune, and David Tomlin were friends. Thus, this evidence was lawfully before the jury.
XI.
Tomlin argues that the trial court erred in allowing a letter written by Tomlin's father, Jack Tomlin, to be introduced into evidence. Specifically, he contends that this letter was hearsay and that its admission violated numerous of his constitutional rights.
During the examination of Willie Edward Estes, a former deputy with the Mobile County Sheriff's Department, the letter was offered and admitted into evidence. The following occurred:
"[Prosecutor]: Judge, we'd offer State's Exhibit One.
"The Court: Any objections?
"[Defense Counsel]: No objection, Your Honor.
"The Court: It's admitted.
"(State's Exhibit Number One was admitted into evidence.)
"The Court: Anything else of this witness?
"[Prosecutor]: No, Your Honor."
Because defense counsel did not object to the admission of the letter, we must evaluate this argument only for plain error. Rule 45A, Ala.R.App.P.
Not only did defense counsel not object to the admission of the letter, defense counsel questioned this witness in-depth about the contents of the letter. The prosecution elicited very little information from this witness concerning the contents of the letter. However, defense counsel conducted the following examination of this witness:
"Q: Let me hand you, if I might, that exhibit that we just identified, I didn't know where it was just a minute ago, State's Exhibit Number One. Now this is the letter to the Circuit Solicitor, Mr. Graddick, that is signed by Jack Tomlin; is that right?
"A: My understanding, yes, sir.
"Q: Yes, sir. And in the first paragraph, this is the one where he said, 'The shotgun was fired into the body. This took place while he was asleep in bed'?
"A: Yes, sir.
"Q: And then that's referring to his son?
"A: Yes, sir.
"Q: And the next paragraph, you said, 'Ricky Brune admitted firing the gun.'?
"A: Yes, sir.
"Q: Now look just at the next page of that, copies of that letter, according to that document in front of you, were sent, is this not true, Mr. Estes, to the Governor?
"A: Yes, sir.
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