Ex parte Hand
| Decision Date | 08 February 1985 |
| Parties | Ex parte Thomas J. HAND, III. (Re Thomas J. Hand, III v. State of Alabama). 83-971. |
| Court | Alabama Supreme Court |
Lee L. Hale, Mobile, for petitioner.
Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for respondent.
We granted certiorari in this case to address petitioner's assertion that his constitutional rights were violated by the trial court, and later by the Court of Criminal Appeals in its affirmance, because a key witness for the defense was prohibited from testifying on his behalf. We hold that his rights were violated, and, therefore, we reverse the judgment of the Court of Criminal Appeals, 472 So.2d 671.
Petitioner, Thomas J. Hand III, was convicted of theft of property in the first degree and sentenced to 15 years' imprisonment pursuant to the Habitual Felony Offender Act. The events leading up to this conviction are as follows.
On March 24, 1981, Hand, who had repossessed automobiles on numerous other occasions, spotted a gold-colored, 1977 Pontiac Grand Prix with a Texas license plate. Hand suspected that the car was "missing," and called the lienholder, Bob Baker Motors. Hand asked Bob Baker, owner of Bob Baker Motors, if he was missing such a car, and, after receiving an affirmative response, asked Baker if he wanted the car to be repossessed. According to the evidence produced at trial, Baker told Hand not to repossess the car. Hand, however, did take the car from its owner, James Searcy, who admitted that he was behind on his payments. Searcy did not try to keep Hand from taking the car. After being informed that the car had, in fact, been taken from Searcy, Baker attempted to have the car repossessed from Hand, and had Hand arrested for stealing the car.
At trial, defense counsel called Paula Renee Turner to testify. She stated that she was in the car with Hand on March 24, 1981, when he discovered the gold Grand Prix. Further, she said she heard a conversation over the car telephone between Hand and an individual who identified himself as Bob Baker, concerning the repossession of the 1977 Grand Prix owned by James Searcy. When counsel tried to elicit testimony concerning the contents of the conversation, the prosecution objected on the grounds that such testimony was hearsay and, therefore, inadmissible. After several unsuccessful attempts by defense counsel to get the testimony before the jury, the trial court ruled that any testimony by the witness concerning the conversation was inadmissible.
Unable to get the contents of the conversation before the jury through Paula Turner's testimony, Hand then took the stand and testified that Bob Baker had authorized the taking and that he had agreed to pay Hand $500.00 to effectuate the repossession. Hand further testified that he made several attempts to secure his $500.00 payment from Baker, but that Baker refused to comply.
Based upon the evidence presented at trial, the jury found Hand to be guilty as charged.
During the hearing on the motion for new trial, Turner was allowed to testify as to the contents of the conversation between Hand and Baker. The trial court then denied the motion for new trial.
On appeal, the Court of Criminal Appeals agreed with Hand that the testimony of Paula Turner should have been admitted at trial, citing for support several of its prior decisions, as well as McElroy's Alabama Evidence. We agree with the Court of Criminal Appeals' holding in this regard. However, the court went on to say:
However, although we do agree that the trial court was in error, the evidence which was sought to be elicited from Ms. Turner was admitted through the testimony of the appellant. "[T]he erroneous exclusion of evidence in the first instance can be cured by the subsequent disclosure of substantially the same facts." ... Therefore, although the exclusion of Ms. Turner's testimony was error, it was harmless error. A.R.A.P....
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