M.T. v. State

• Decision Date: 29 September 1995
• Docket Number: CR-94-0176
• Citation: 677 So.2d 1223
• Parties: M.T., Sr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1223

677 So.2d 1223

M.T., Sr. v. STATE.

CR-94-0176.

Court of Criminal Appeals of Alabama.

Sept. 29, 1995.

Rehearing Denied Dec. 1, 1995.

Certiorari Quashed May 17, 1996

Alabama Supreme Court 1950430.

Robert A. Sapp, Jr., Cullman, for Appellant.

Jeff Sessions, Atty. Gen., and Norbert Williams, Asst. Atty. Gen., for Appellee.

LONG, Judge.

The appellant, M.T., Sr., was convicted of sodomy in the first degree, sexual abuse in the first degree, and sexual abuse in the second degree, violations of § 13A-6-63, § 13A-6-66 and § 13A-6-67, Code of Alabama 1975, respectively. The appellant appeals from these convictions.

The record reflects that the appellant and his wife separated sometime in October 1989, and that at that time she moved out of the house the couple had been occupying. The couple's three children, M.T., A.T., and D.T., continued to live with their father. The couple divorced in June 1990; the appellant's ex-wife subsequently remarried.

D.T., who was 14 years old at the time of the incident, testified that "sometime" (R. 63) before Christmas in 1989, his father called him to his bedroom, around midnight, and told him to rub lotion onto his legs. According to D.T., he had massaged his father's legs on other occasions. D.T. testified that on this particular night, his father gave him some whiskey and instructed him to rub his legs and his genital area. D.T. testified that when he refused, the appellant reached over and placed his hand on a gun that was on the bedside table. D.T. stated that he then complied, because he was afraid of what the appellant might do.

D.T. testified that a second incident occurred approximately one month later. On that occasion, the appellant gave D.T. some Mad Dog 20/20, an alcoholic beverage, and some cigarettes. According to D.T., he and his father watched a pornographic movie. Following the movie, the appellant told D.T. to rub lotion on his legs and to "play" with the appellant's penis. D.T. testified that he was afraid because he could see a gun on the nightstand, so he complied and rubbed the appellant's penis to the point of ejaculation. D.T. stated that the appellant also tried to fondle his genitals, but that he prevented him from doing so.

A.T., who was 17 years old at the time and mentally impaired, testified that after his parents separated, his father called him to come into his bedroom and instructed him to rub lotion on his legs. According to A.T., the appellant was dressed in women's clothing. On that occasion, the appellant directed A.T. to massage his genitals and A.T. complied. During the incident, A.T. observed a gun on the nightstand.

A.T. also testified regarding a second encounter with his father. A.T. said that the appellant again summoned him to his bedroom, where he gave him alcohol to drink. According to A.T., the appellant was again wearing women's clothing. The appellant told A.T. to rub his genitals and to perform oral sex on him, and A.T. complied. A.T. testified that the appellant, in turn, briefly performed these acts on him. During this incident, A.T. saw the handle of a gun sticking out from underneath the pillow on the bed.

The appellant denied the allegations and testified that his sons had fabricated the stories because, he said, they were angry with him and wanted to move out of the house.

I.

The appellant contends that the trial court erred to reversal by allegedly improperly restricting his cross-examination of a state's witness, Jo Hanson, a social worker assigned to the crisis intervention unit of the Department of Human Resources, who had taken statements from the two victims. We disagree.

During the cross-examination of Ms. Hanson, the following occurred:

"Q: (BY MR. BERRY [Defense Counsel] ): How long have you worked with Ms. Owens [an intake worker with the Department of Human Resources who took the initial report from the victims' mother and who subsequently assigned the case to Jo Hanson]?

"A: Twenty years.

"Q: And out of the twenty years, do you know her reputation for truth and veracity?

"MR. NIEZER [Prosecutor]: Judge, I object to that.

"THE COURT: I sustain. Come down.

"MR. BERRY: I'm not through, Your Honor.

"THE COURT: You are finished right now, Mr. Berry.

"MR. BERRY: I'm objecting for the record. I'm not through with the witness.

"THE COURT: I don't care what you're doing. You're fooling around here playing a game of evidence.

"MR. BERRY: I'm not through, Your Honor.

"THE COURT: I don't appreciate it and I won't have it.

"MR. BERRY: I object.

"THE COURT: I told you before, the fourth time I told you in this trial, now you're not going to examine another witness if you do it again. You got that, Mr. Berry? I'll go anywhere and testify to it. You understand? Where do you think you are? We've got evidence. You don't ignore it in my courtroom. I don't appreciate it a bit. Take a five minute break. Don't you forget, Mr. Berry. If you do this again, you get no further examination.

"Y'all have to forgive me now, but you get my attention if you keep on and on and on.

"(Recess.)

"THE COURT: You do that again and I'll hold you in contempt. You got it, Mr. Berry?

"MR. BERRY: Yes, sir.

"THE COURT: Whatever I have to do, I'll do it. Hear, Mr. Berry?

"MR. BERRY: Yes, sir.

"THE COURT: Don't you forget that.

"MR. BERRY: I understand that, Your Honor. Trying to do my job.

"THE COURT: No, you're not. You're trying to fool with me.

"MR. BERRY: No, sir.

"THE COURT: I'll put you in jail if that happens another time--you got that--on contempt of court.

"MR. BERRY: I understand that.

"THE COURT: All right. Let me ask the jury, each of you individually, can you put out of your mind anything that transpired with the Court, judge, and Mr. Berry or anybody else, not let it influence you in this case on the facts one way or the other and the law? If you can't do that raise your hand.

"(No response.)

"THE COURT: These things occur on rare occasions and you have to listen, [be] subjected to listening to it, but don't let it affect you now--that would be totally wrong--at all one way or the other for or against the defendant. I'll tell you more about that later.

"Got another witness today?"

(R. 245-50.) (Emphasis added.)

" '[A] criminal defendant has the right to a thorough and sifting cross-examination, but that right is not absolute. The latitude and extent of cross-examination are matters within the sound discretion of the trial court, and in the absence of abuse, that discretion is not reversible on appeal.' "

"Ex parte Pope, 562 So.2d 131, 134 (Ala.1989), cert. denied, 498 U.S. 841, 111 S.Ct. 118, 112 L.Ed.2d 87 (1990). 'The trial court has the discretion reasonably to limit the range of cross-examination in respect to collateral and irrelevant matters or with respect to matters that unnecessarily consume time in the trial of the case.' C. Gamble, McElroy's Alabama Evidence § 136.01 (4th ed. 1991). Furthermore, '[o]n appeal, the party claiming that a trial judge has abused his discretion in such aspect bears the burden of persuasion.' Connell v. State, 294 Ala. 477, 481, 318 So.2d 710, 714 (1974)."

Smiley v. State, 655 So.2d 1074, 1091 (Ala.Crim.App.1993), reversed on other grounds, 655 So.2d 1091 (Ala.1995). (Emphasis added.) See also, Wright v. State, 641 So.2d 1274, 1278 (Ala.Crim.App.1993); Cosby v. State, 627 So.2d 1059, 1061 (Ala.Crim.App.1993) ("[t]he extent of cross-examination is within the trial judge's discretion and his decision will not be disturbed without a showing of an abuse of that discretion"); Beavers v. State, 565 So.2d 688, 689 (Ala.Crim.App.1990) ("[i]t is a well-established rule in this state that the latitude and extent of cross-examination are matters which of necessity rest largely within the sound discretion of the trial court, and rulings with respect thereto will not be revised on appeal except in extreme cases of abuse").

From our review of the record, we cannot say that the trial court abused its discretion in limiting the defense's cross-examination of Jo Hanson. Earlier in the cross-examination of Hanson, the trial court had admonished defense counsel to adhere to the rules of evidence when questioning the witness or risk having the questioning stopped. (R. 242-43.) It appears that when the defense counsel posed the question to Hanson that caused the trial court to halt the cross-examination, defense counsel was attempting to impeach Hanson in an impermissible manner. Specifically, it appears that defense counsel sought to cross-examine Hanson regarding her knowledge of Owens's reputation for truth and veracity, when Owens had not testified at trial and Hanson had not testified to Owens's good general reputation for truth and veracity on direct examination. See, generally, C. Gamble, McElroy's Alabama Evidence, § 176.01(10) (4th ed.1991) ("[i]f a witness testifies to another's good general reputation only with respect to truth and veracity, the witness may be asked on cross-examination whether he has heard rumors derogatory to such other if, but only if, the rumors inquired about are relevant to the trait of truth and veracity"). (Emphasis added.) If defense counsel's intentions were otherwise, he should have made an offer of proof to the trial court when the trial court suspended the questioning. See, Myers v. State, 601 So.2d 1150, 1151 (Ala.Crim.App.1992), (contention that trial court erred in not allowing defense to cross-examine state's witness about alleged prior inconsistent statements held not preserved for appellate review because defense counsel failed to make an offer of proof summarizing the expected testimony). Although the trial court's response to what it considered to be an inappropriate line of questioning was harsh, we cannot say that it constituted an abuse of discretion in light of the record before this Court, particularly given the trial court's prior admonishment to defense counsel to adhere to the rules of evidence in questioning witnesses.

Even if this Court...