Finley v. State
| Decision Date | 13 January 1995 |
| Docket Number | CR-92-0636 |
| Citation | 661 So.2d 762 |
| Parties | Lewis FINLEY v. STATE. |
| Court | Alabama Court of Criminal Appeals |
The appellant, Lewis Finley, was indicted for assault in the second degree in violation of § 13A-6-21, Code of Alabama 1975. A jury found Finley guilty as charged in the indictment. The trial court then sentenced Finley as an habitual offender to 50 years in prison. Following his oral notice of appeal, Finley filed a motion for a new trial in which he raised an ineffective assistance of counsel claim. The trial court did not rule on the motion, saying it had no jurisdiction over the motion because the case was on appeal. Before considering Finley's appeal, this court remanded this case to the trial court for an evidentiary hearing on the issue of alleged ineffective assistance of counsel.
On return to remand, the trial court denied Finley's motion for a new trial. In a written order denying the motion, the trial court found that Finley had effective assistance of counsel at the time of the trial. We need not review this issue, however, because in reviewing Finley's appeal on the merits, we found reversible error as to another issue.
On appeal, Finley argues that the trial court erred in allowing the prosecutor to impeach his testimony by questioning him about collateral crimes that did not involve moral turpitude and that did not fit within any exceptions to the general exclusionary rule, which disallows evidence of collateral bad acts. He also claims the trial court erred in allowing the prosecutor to elicit specific details concerning a prior conviction for second degree assault.
In Alabama a witness can be impeached by showing that the witness had been convicted of a crime of moral turpitude. § 12-21-162(b), Code of Alabama 1975. Clearly, this means that crimes not involving moral turpitude cannot be used to impeach the witness.
In this case, on direct examination of Finley, defense counsel asked him about previous convictions:
On cross-examination of Finley, the following colloquy was had:
Finley contends that the trial court erred in admitting evidence of the following collateral crimes because they are not crimes involving moral turpitude: (1) carrying a concealed weapon (1981); (2) resisting a police officer (1982); (3) assault (1982); (4) criminal mischief in the third degree (1982); (5) assault in the third degree (1982); (6) unauthorized use of a vehicle (1985); (7) assault in the second degree (1986); (8) resisting a police officer (1987); (9) DUI (1990); (10) trespass in the first degree (1990); and (11) DUI (1992).
Our first question is whether these crimes are crimes of moral turpitude. Ex parte Bankhead, 585 So.2d 112, 122 (Ala.1991) (citations omitted). The courts of this state have held that several of the crimes that the prosecutor used to impeach Finley are not crimes of moral turpitude, including resisting a police officer, Holcomb v. State, 35 Ala.App. 528, 50 So.2d 165 (1951); trespass, United States Lumber & Cotton Co. v. Cole, 202 Ala. 688, 81 So. 664 (1919); driving under the influence, Maxwell v. State, 620 So.2d 93, 97 (Ala.Crim.App.1992); and assault in the third degree, Johnson v. State, 629 So.2d 708 (Ala.Crim.App.1993), aff'd, 629 So.2d 714 (1993). See also, C. Gamble McElroy's Alabama Evidence § 145.01(9) and (10) (4th ed. 1991). Because the prosecutor used crimes that do not involve moral turpitude to impeach Finley, we need not reach the question of whether the offenses of carrying a concealed weapon, unauthorized use of a vehicle, and criminal mischief are crimes involving moral turpitude.
Our next question is whether the prosecution's use of crimes not involving moral turpitude to impeach Finley was improper. The State argues in its brief to this court that this court and the Alabama Supreme Court have held that when the defendant initially testifies as to prior convictions, the door is opened for the State to question that defendant further in this regard. In support of this contention, the State cites three cases, Griffith v. State, 607 So.2d 317 (Ala.Crim.App.1992), cert. denied, 607 So.2d 320 (Ala.1992); Ex parte Bankhead, 585 So.2d 112, 122 (Ala.1991); and Bailey v. State, 579 So.2d 55 (Ala.Crim.App.1991). In each of these cases, however, the prior convictions involved crimes of moral turpitude. The issue in Bankhead, in fact, was whether the convictions used to impeach the defendant actually involved crimes of moral turpitude. The Supreme Court held that because the crimes were crimes involving moral turpitude, the State could use those crimes to impeach the defendant in that case.
The defendant's admission on direct examination that he has been convicted of a crime involving moral turpitude does not open the door for the prosecution to ask about any crime that may be committed. "In cross-examining a witness for the purpose of impeaching him by showing the commission of a crime involving moral turpitude, care should be exercised so as not to include an offense that does not involve moral turpitude." Kennedy v. State, 371 So.2d 464, 468 (Ala.Crim.App.1979). The prosecution is still limited to asking only about crimes involving moral turpitude. To hold otherwise would unfairly place the defendant on the horns of a dilemma. The defendant would be faced with the choice either of admitting to having been convicted of a crime involving moral turpitude and allowing the prosecution to ask about any crime it wished, or...
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