Gissendaner v. State, 3 Div. 318
| Decision Date | 18 March 1975 |
| Docket Number | 3 Div. 318 |
| Citation | 54 Ala.App. 535,310 So.2d 255 |
| Parties | Earley E. GISSENDANER v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Benjamin E. Pool, Montgomery, for appellant.
William J. Baxley, Atty. Gen., and Kermit M. Downs, Asst. Atty. Gen., for the State.
Appellant-defendant, an indigent represented here and at nisi prius by the same appointed counsel, was indicted, tried and convicted of robbery. The jury fixed his punishment at ten years imprisonment in the penitentiary.
It appears that the alleged robbery occurred on the south side of Sears Department Store (facing Fairview Avenue) in Montgomery County, at which time the victim, Stuart Spears, was approached by the defendant and engaged in conversation whereby the victim was informed that an elderly man wanted to have some 'fun.' The elderly man, standing just inside Sears, approached and also engaged the victim in conversation. It appears further that the defendant stuck a sharp instrument in the victim's back without injuring him and demanded his money. The victim thereupon gave the defendant two five dollar bills. Both the defendant and the 'fun' loving elderly man hurriedly departed the scene. The victim went to a nearby telephone and notified the police. He was later shown a 'mug' book in the possession of the police department, wherein he identified the defendant, who was later arrested. We omit some details not essential to this opinion.
During direct examination by the state, the court overruled the timely and appropriate objection of the defendant and permitted the elicitation of evidence from the robbery victim as follows:
It appears at the time of this ruling the defendant had not offered any evidence to impeach the victim and did not attack his credibility. In fact, no impeaching evidence was offered and no attack was made on the credibility of the witness during the trial.
The law is clear in Alabama as appears in numerous decisions, some of which we collate below, that evidence to sustain the credibility of a witness or bolster his testimony is inadmissible on timely and appropriate objections thereto when his testimony has not been impeached or attacked. Earle v. State, 1 Ala.App. 183, 56 So. 32(5); Moons' Administrator v. Crowder, 72 Ala. 79; Jimmerson v. State, 17 Ala.App. 552, 86 So. 153; Morrow v. State, 23 Ala.App. 452, 126 So. 887; Lassiter v. State, 35 Ala.App. 323, 47 So.2d 230; Pointer v. State, 37 Ala.App. 670, 74 So.2d 615; Hixon v. State, 24 Ala.App. 280, 134 So. 458; Hixon v. State, 223 Ala. 10, 134 So. 458; Berry v. State, 27 Ala.App. 507, 175 So. 407, certiorari denied, 234 Ala. 414, 175 So. 412; Stokley v. State, 254 Ala. 534, 49 So.2d 284; Edwards v. State, 22 Ala.App. 34, 111 So. 765; Barber v. State, 23 Ala.App. 584, 129 So. 492.
The fact that the victim and the witness had an impediment of speech which the state contends made his testimony less impressive did not justify this bolstering testimony. The fact also that the witness appeared to be upset over the death of his father did not authorize the admission of this irrelevant evidence. The witness on the day of the trial was importuned by the defendant to accept twenty dollars as a refund of the ten dollars and also to cover his expenses in coming to trial. The witness went to the District Attorney with the money, which he had conditionally received. The District...
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Baxter v. State
...the informant's own credibility, although the defense had not attacked his credibility. The appellant cites Gissendaner v. State, 54 Ala. App. 535, 536, 310 So.2d 255 (1975) in support of his argument. See also Johnson v. State, 549 So.2d 636 (Ala.Cr.App.1989). Although the appellant cites ......
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Trammell v. Disciplinary Bd. of the Alabama State Bar
...unless that party's credibility has been impeached. McPhearson v. State, 271 Ala. 533, 125 So.2d 709 (1961); Gissendaner v. State, 54 Ala.App. 535, 310 So.2d 255, appeal after remand 338 So.2d 1025 Since no opportunity to impeach Trammell had yet arisen when he attempted to bolster his repu......
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State v. Froehlich, 47146-1
...v. United States, 315 F.2d 120 (9th Cir. 1963), cert. denied 375 U.S. 916, 84 S.Ct. 201, 11 L.Ed.2d 155 (1963). Gissendaner v. State, 54 Ala.App. 535, 310 So.2d 255 (1975) presents a factual situation similar to the present case wherein the appellate court ruled such testimony inadmissible.......
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Gissendaner v. State
...the robbery now in question. Appellant's first trial ended in his conviction, but was reversed by this Court in Gissendaner v. State, 54 Ala.App. 535, 310 So.2d 255 (1975). The second trial also ended in a conviction, and the present appeal was Stewart Spears, the alleged victim, was the St......