Hooper v. State

• Decision Date: 30 March 1990
• Docket Number: 3 Div. 91
• Citation: 585 So.2d 133
• Parties: John Edward HOOPER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 133

585 So.2d 133

John Edward HOOPER v. STATE.

3 Div. 91.

Court of Criminal Appeals of Alabama.

March 30, 1990.

Rehearing Denied May 11, 1990.

Paul M. Harden and Anthony J. Bishop, Evergreen, and Windell C. Owens, Monroeville, for appellant.

Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.

James W. May, Gulf Shores, for amicus curiae Alabama Criminal Defense Lawyers Ass'n.

BOWEN, Judge.

John Edward Hooper was convicted of two counts of second degree rape and was sentenced to five years' imprisonment on each conviction. Although Hooper raises nine issues in this appeal from his convictions, we need address only two.

Hooper was originally tried and convicted of these crimes in September 1985. His convictions were subsequently reversed because the prosecutor had asked improper questions of character witnesses on cross- examination. Hooper v. State, 523 So.2d 469 (Ala.Cr.App.1986). Hooper was retried and was again convicted in September 1988. Prior to this second trial, the prosecutrix, Hooper's daughter, recanted her allegations. ¹ She also refused to testify against Hooper at the retrial. It is undisputed that before the second trial the State was aware that she had recanted her stories and would not testify against him.

The prosecutrix was the first witness to testify at the retrial. At the request of the State and over Hooper's objection, she was called as the court's witness and, in response to specific questions posed by the court, flatly denied that Hooper had committed the acts with which he was charged. Hooper then made a motion for judgment of acquittal, which was denied. The State was thereafter permitted to cross-examine the prosecutrix with respect to her testimony at the first trial. In this manner the State elicited that the prosecutrix had previously testified that Hooper did engage in sexual intercourse with her on the dates alleged in the indictment. The State also elicited the prosecutrix's testimony from the first trial concerning the details of these acts and other sexual acts between her and Hooper.

At the second trial, a school counselor, a social worker, and three friends of the prosecutrix testified that the prosecutrix had previously told them that Hooper had engaged in sexual intercourse with her. A clinical psychologist, who had interviewed the prosecutrix only once, was called by the State and testified that the prosecutrix exhibited characteristics of a sexually abused child. There was no eyewitness testimony and the medical evidence indicated only that the prosecutrix's physical condition was consistent with having engaged in sexual intercourse. ² At the second trial, the only evidence incriminating Hooper was the prosecutrix's prior inconsistent testimony and her prior inconsistent statements made to the counselor, the social worker, and the three friends.

Hooper's renewed motion for judgment of acquittal, made after the prosecution rested, was denied by the trial court. In his defense, Hooper denied raping or otherwise sexually molesting his daughter.

I

Hooper contends, and we agree, that the trial court erred in giving the following instruction to the jury:

"Now, the prior testimony of [the prosecutrix] given in September of 1985 while she was under oath and subject to cross-examination can be used by you as substantive evidence of the facts stated by her during her prior testimony to prove or disprove the innocence or guilt of the Defendant John Edward Hooper of the offenses alleged in the indictment."

This instruction was given at the State's request and in reliance on dicta contained in this court's opinion in Randolph v. State, 348 So.2d 858 (Ala.Cr.App.), cert. denied, 348 So.2d 867 (Ala.1977).

Contrary to the dicta contained in Randolph, 348 So.2d at 866, the Alabama Supreme Court clearly stated in Lester v. Jacobs, 212 Ala. 614, 618, 103 So. 682, 686 (1925): "The general rule in this jurisdiction is that the testimony given on a former trial by a witness at the last trial is only admissible, after a proper predicate, for the purpose of contradiction or impeachment; it is not competent as cumulative or original evidence." (Emphasis added.) Accord, Manning v. State, 217 Ala. 357, 359, 116 So. 360, 361 (1928) (testimony given at a preliminary hearing could have been introduced, "not as original evidence of fact, but for the purpose of testing the recollection of the witness, or for impeachment") (emphasis added); Porter v. Louisville & Nashville R.R., 202 Ala. 139, 142, 79 So. 605, 608 (1918) ("In no event could [the prior testimony] have been received as original evidence ..., nor do we assume that it was offered for that purpose") (emphasis added). Cf. Corona Coal & Iron Co. v. Callahan, 202 Ala. 649, 650, 81 So. 591, 592 (1919) (in suit for malicious prosecution, it was reversible error to admit testimony from the underlying trial as original evidence); E.E. Yarbrough Turpentine Co. v. Taylor, 201 Ala. 434, 435, 78 So. 812, 813 (1918) (same); Thompson v. Richardson, 96 Ala. 488, 492, 11 So. 728, 729 (1892) (same). In the event a witness's inconsistent testimony from a prior trial is admitted, the jury should be clearly instructed that this testimony may be considered for impeachment purposes only and not as independent or original evidence. See Manning v. State, 217 Ala. at 359, 116 So. at 362; Kennedy v. State, 85 Ala. 326, 331, 5 So. 300, 301 (1888).

The rationale advanced by the Alabama courts for holding prior inconsistent statements, even those given as testimony in a prior proceeding, inadmissible as substantive evidence is that such statements are "purely hearsay." Corona Coal & Iron Co. v. Callahan, 202 Ala. at 650, 81 So. at 592. Accord, Thompson v. Richardson, 96 Ala. at 492, 11 So. at 729 ("merest hearsay"). The Federal Rules of Evidence offer a different view with regard to prior inconsistent statements "given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition." Fed.R.Evid. 801(d)(1)(A). Rule 801(d)(1)(A) provides that such a statement is not hearsay where made by a witness who testifies at the present trial and who is subject to cross-examination concerning the prior statement. Several states have adopted this federal rule or a version thereof. See generally 4 D. Louisell & C. Mueller, Federal Evidence § 410 (1980 & Supp.1989) (State Adoptions of Rule 801).

In Randolph v. State, 348 So.2d at 863-64, this court reversed the defendant's conviction because the trial court had failed to specifically instruct the jury that the prior inconsistent testimony of the State's primary witness, which had been offered for impeachment purposes, could not be considered as substantive evidence. Through an opinion authored by the late Leigh M. Clark, Supernumerary Circuit Judge, we questioned the soundness of this aspect of Alabama law. Some Alabama commentators later described Randolph as documenting "widespread dissatisfaction with the traditional rule," which is followed in Alabama, and as citing the cases and writings of many judges and scholars who "have pressed for repudiation of the rule that prior inconsistent statements of a non-party witness have no substantive consequence in a present trial." Gamble, Howard, & McElroy, The Turncoat or Chameleonic Witness: Use of His Prior Inconsistent Statement, 34 Ala.L.Rev. 1, 18 (1983) (footnotes omitted) (citing Randolph, 348 So.2d at 864). We also discussed Federal Rule 801(d)(1)(A) and the history of its adoption. Randolph, 348 So.2d at 865-66. Recognizing the incongruity in permitting a witness's prior testimony to be admitted as substantive evidence when the witness is unavailable at the second trial, but not when the witness changes his or her testimony, we indicated our preference for permitting the introduction of a witness's prior inconsistent statement as substantive evidence when the prior inconsistent statement was "made while testifying under oath on a former trial, with the opportunity for cross-examination." 348 So.2d at 866. We offered two "[s]olid and cogent reasons," id., for our preference:

"(a) [T]he prior statement was made nearer in time to the occurrence, event, or other matter to which it relates, and therefore when the witness' recollection would be fresher and better, and

"(b) [T]he prior statement is less likely to have been influenced by pressure arising from the controversy, including the cajolery or corruption of, or other tampering with, the witness." Id.

However, our reversal of Randolph's conviction was grounded on existing Alabama law and the remainder of our discussion in that case was purely dictum. Dictum, of course, is merely persuasive and has no precedential value. See Knight v. State, 273 Ala. 480, 486, 142 So.2d 899, 905 (1962); Roquemore v. Sovereign Camp W.O.W., 226 Ala. 279, 282, 146 So. 619, 622 (1933). While we continue to adhere to the view that the Alabama Supreme Court should adopt the federal rule or some version thereof, ³ this court is not at liberty to take such action. The Alabama Supreme Court cases cited at the outset of this discussion have not been overruled or otherwise modified by that court. ⁴ This court is bound by the decisions of the Alabama Supreme Court, § 12-3-16, Ala.Code (1975), and may not "overturn or change [those decisions] in any manner." Passmore v. State, 47 Ala.App. 189, 191, 252 So.2d 115, 116 (1971) (emphasis added). In light of those cases, we have no alternative to the conclusion that the trial court erred in instructing the jury that the prior inconsistent statement of the prosecutrix could be considered substantive evidence.

II

Hooper asserts that the evidence was insufficient to sustain his convictions. In light of our discussion in Part I, above, we are constrained to agree.

In order to convict Hooper of second degree rape, the State had to prove that Hooper engaged in sexual intercourse with the prosecutrix while she was between...