Hooper v. State

• Citation: 585 So.2d 142
• Decision Date: 29 March 1991
• Docket Number: 3 Div. 91
• Parties: John Edward HOOPER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 142

585 So.2d 142

John Edward HOOPER v. STATE.

3 Div. 91.

Court of Criminal Appeals of Alabama.

March 29, 1991.

Rehearing Denied May 17, 1991.

Certiorari Denied Aug. 23, 1991

Alabama Supreme Court 1901381.

BOWEN, Judge.

John Edward Hooper was convicted of two counts of second degree rape and was sentenced to five years' imprisonment on each conviction. On original submission of this appeal, this Court reversed those convictions, addressing only two of the nine issues raised. Hooper v. State, 585 So.2d 133 (Ala.Cr.App.1990). Our decision was reversed by the Alabama Supreme Court. Hooper v. State, 585 So.2d 165 (Ala.1990). In this opinion on remand from the Alabama Supreme Court, we now address all of the issues raised by the appellant on original submission.

I.

In Hooper v. State, 585 So.2d 137, 139, the Alabama Supreme Court "changed [the] rule" in this state and held "that a prior inconsistent statement of a witness who takes the stand and is available for cross-examination may be used as substantive evidence if the prior statement was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition."

Therefore, the trial court did not err in instructing the jury that the testimony of the prosecutrix given at the prior trial of the appellant for this same offense could be considered as substantive evidence.

II.

Our finding, on initial submission, that the evidence was insufficient to sustain the appellant's conviction was based on our application of existing law. We held that "the only evidence incriminating Hooper was the prosecutrix's prior inconsistent testimony and her prior inconsistent statements made to a school counselor, a social worker, and three of her friends." Hooper v. State, 585 So.2d 133, 134 (emphasis omitted). On certiorari review, the Alabama Supreme Court "changed the rule" so that the prosecutrix's prior inconsistent testimony given at the appellant's first trial was admissible as substantive evidence.

At the first trial, the prosecutrix testified that the appellant had sexual intercourse with her when she was 13 years old and that those acts occurred in Escambia County. This prior testimony was admitted into evidence at the appellant's second trial. A conviction for rape may be had on the uncorroborated testimony of the prosecutrix. Boddie v. State, 52 Ala. 395, 398-99 (1875). Therefore, the appellant's conviction is supported by the evidence.

III.

The appellant contends that the trial court abused its discretion in calling the prosecutrix as the court's witness.

Prior to the second trial, the prosecution moved to have the prosecutrix declared hostile and called as a court witness due to the fact that she had recanted her prior testimony incriminating the appellant. The trial court granted that motion and called the prosecutrix as a court witness.

At trial, the prosecutrix was the first witness. She was called by the trial court and the trial judge briefly examined the prosecutrix regarding her name, her age, her date of birth, the age of the appellant (which the prosecutrix did not know), and her denial that the appellant engaged in sexual intercourse with her. The prosecutor was then allowed to cross-examine the prosecutrix.

A trial court, in the exercise of its sound discretion and being careful to maintain an attitude of impartiality, may call a witness as a court witness, may examine such witness, and may permit that witness to be cross-examined by both the prosecution and the defense. Kissic v. State, 266 Ala. 71, 74-75, 94 So.2d 202, 205 (1957).

Here, the trial court specifically stated:

"The court is going to make every effort to ensure that the jury understands that they are not to give any more credence to that witness [the prosecutrix] or take any significance from the fact that the court calls her as a witness in this case. I'm going to do everything I can to prevent them from thinking that I am an arm of the prosecution or the Attorney General's office or any other agency. I want to do everything I can to make [and] maintain a neutral position as best I can and to somehow try to see that whatever evidence needs to come out to get to the truth of the matter comes out. That's the only purpose of this court is to see that the truth is brought out."

The record contains no indication that the trial court did not maintain an attitude and demeanor of impartiality. The record furnishes no reason to believe that the trial court abused its discretion. See Wade v. State, 50 Ala. 164, 166 (1874).

IV.

State's witnesses S.M. and M.L. were friends of the prosecutrix. Each testified to complaints made by the prosecutrix to them about the appellant's sexual molestation. The trial court refused to allow defense counsel to cross-examine either witness about whether she had been a victim of sexual abuse. Defense counsel made an offer of proof that each witness had been sexually abused by someone other than the appellant, and argued that each witness was biased against the appellant for that reason. Counsel also argued that the prosecutrix made her complaints to these witness because they had been victims of sexual abuse. The trial court sustained the State's objection and held that "there's got to be more of a direct link to show bias toward this defendant, like something that occurred between them."

"[A] party is given wide latitude on cross-examination to test a witness's partiality, bias, or interest." Perry v. Brakefield, 534 So.2d 602, 608 (Ala.1988). The rule in this state, notwithstanding the general principle concerning the development of the interest or bias of a witness, is that the range of cross-examination rests largely in the discretion of the trial court and that the court's rulings will not be disturbed unless it clearly appears that the defendant was prejudiced by the rulings. However, "where the witness' testimony is important to the determination of the issues being tried, there is little, if any, discretion in the trial judge to disallow cross-examination on matters which tend to indicate the bias of the witness." Wells v. State, 292 Ala. 256, 258, 292 So.2d 471, 473 (1973).

"It is always competent on cross-examination to make such interrogation of a witness as would tend to test his interest, bias or prejudice or to illustrate or impeach the accuracy of his testimony. Both our appellate courts have approved the principle stated in 2 Wigmore on Evidence, 2d Ed., § 949, p. 232: 'The range of external circumstances from which probable bias may be inferred is infinite. Too much refinement in analyzing their probable effect is out of place.' Louisville & N.R. v. Martin, 240 Ala. 124, 198 So. 141, 144; [ (1940) ] Sowell v. State, 30 Ala.App. 18, 199 So. 900. [ (1941) ] And for emphasis we repeat the oft-stated rule that the latitude and extent of such cross-examination is a matter which of necessity rests largely within the sound judicial discretion, which will not be revised on appeal except in extreme cases of abuse. Such cross-examination may even pertain to irrelevant and immaterial matters as bearing on the memory, accuracy, credibility, interest or sincerity of the witness."

Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 612, 64 So.2d 594, 598 (1953). " '[T]he extent to which a witness may properly be cross examined as to collateral circumstances for the purpose of showing bias depends in some instances upon the importance of his testimony, and especially upon whether such testimony is of a nature to be seriously affected by prejudice, bias, or hostility.' " Louisville & N.R. v. Martin, 240 Ala. 124, 131, 198 So. 141, 147 (1940) (emphasis in original). "[I]t is an abuse of discretion and a violation of constitutional rights to deny to a defendant the right to cross-examine a witness at all on a 'subject matter relevant to the witness's credibility', such as the witness's possible motive for testifying falsely." United States v. Brown, 546 F.2d 166, 169 (5th Cir.1977). See Stinson v. State, 41 Ala.App. 575, 576, 142 So.2d 897, 898, cert. stricken, 273 Ala. 479, 142 So.2d 899 (1962) (State properly allowed to cross-examine wife, who testified for defendant-husband, as to whether she had previously been convicted for same offense of which defendant stood accused.). "We think that a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby 'to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness.' Davis v. Alaska, [415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974) ]." Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986).

We find that the trial court erred, at least with regard to S.M., in not allowing defense counsel to cross-examine that witness about whether she had ever been sexually abused. The fact that a prosecution witness has been a victim of sexual abuse is a matter which may tend to bias that witness against a defendant charged with the rape of his daughter. We find this conclusion inescapable in light of the fact that two veniremembers were excused for cause based on their admitted prejudice caused by the facts that one veniremember had been raped and the minor daughter of another member had been raped.

In qualifying the jury venire, the trial court asked, "Have you been or has any member of your family ever been the victim of rape or any sexual abuse?" Two veniremembers indicated that they had been sexually abused and that their experience either would or might influence their verdict. The trial court granted the appellant's challenge for cause, without objection from the prosecution, to these two veniremembers.

However, under the circumstances of this case,...