Maxwell v. State
| Decision Date | 19 August 1980 |
| Docket Number | 6 Div. 294 |
| Citation | 387 So.2d 328 |
| Parties | J. C. MAXWELL v. STATE. |
| Court | Alabama Court of Criminal Appeals |
William G. Veitch, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., Charles M. Allen, II, Asst. Atty. Gen., for appellee.
Appellant was convicted of murder in the first degree of Edna Marie Maxwell, his wife, by shooting her with a pistol.
Our review of the evidence convinces us that there was ample evidence to support the verdict. There is no contention to the contrary.
The only issue presented for review relates to the question of the admissibility of evidence of two prior convictions of defendant, one for robbery and one for grand larceny. The statement of the issue in appellant's brief is as follows:
"In order to justify exposing Defendant's criminal record to a jury, the probative relevance of prior convictions to the issue of credibility must outweigh the degree of prejudice that is produced from such a relevation to the jurors."
The substance of defendant's contention in the trial court on the point is revealed by the following portion of the transcript on an in camera hearing:
The foregoing portion of the transcript occurred just after the State rested. Upon completion of the in camera hearing and the return of the jury to the court room after a coffee break, the trial proceeded with the defendant testifying as his only witness. Included in his testimony on direct examination was the following:
In appellant's argument in his brief on appeal, he states:
We do not find in the transcript or the record proper that defendant raised any question in the trial court as to the constitutionality of the governing statutory law of Alabama, Code of Alabama 1975, § 12-21-162, as follows:
Any question as to the constitutionality of the cited statute or any procedure thereunder is not reviewable by an appellate court unless the question was presented in the trial court. In Smith v. State, 280 Ala. 241, 244, 192 So.2d 443, it is stated:
As defendant elected to show the prior convictions of defendant without being assured that the State would do so on cross-examination of defendant as a witness, we cannot say that he properly presented to the trial court his contention that a defendant's prior conviction for a crime involving moral turpitude cannot be shown against him upon his having testified as a witness for himself unless "the probative relevance" of his prior conviction outweighs "the degree of prejudice that is produced" by admitting the evidence. However, to allay any notion that this Court is of the opinion that a trial court is required to disallow such evidence unless and until it is subjected to and is found to meet an in camera weighing or balancing test, we proceed to a consideration of appellant's contention, and the cases upon which he relies, including some subsequent cases on the subject.
The cases relied upon by appellant are Luck v. United States, 348 F.2d 763 (D.C. Cir. 1965); Gordon v. United States, 383 F.2d 936 (D.C. Cir. 1967); Blakney v. United States, 397 F.2d 648 (D.C. Cir. 1968); Evans v. United States, 397 F.2d 675 (D.C. Cir. 1968); Weaver v. United States, 408 F.2d 1269 (D.C. Cir. 1969) and United States v. Bailey, 426 F.2d 1236 (D.C. Cir. 1969). However supportive they may be of any contention of appellant as to what the law ought to be, they are not apposite as to what the law actually is on the subject. Involved in all of the cases cited by appellant, all of which were of the United States Court of Appeals of the District of Columbia Circuit, was the unique statute of the District of Columbia, which the court construed as not requiring under all circumstances, but as permitting, when meeting a mentioned weighing or balancing test, in the judgment of the trial court, a construction that has never been placed upon the applicable statutory law of Alabama. Even if it were subject to such a construction, at least one of the cases cited would adversely dispose of the particular contention of appellant, for the reason that he did not on the trial meet the burden of showing the inferior value of the impeaching evidence when compared with the value, in the interest of justice, of allowing the defendant to testify free of impeachment by prior convictions of a crime. Speaking for the court in Evans v. United States, supra, Judge Warren Burger, now Chief Justice Burger, said:
To avoid any misunderstanding as to our view of the applicability of what has just been quoted from Evans v. United States, supra, it now appears to be applicable only in a case, such as this, in which there is no statutory requirement for the mentioned balancing or weighing test. In the cases cited, it was of judicial origin. What we have quoted from Evans v. United States is applicable only as adversely dispositive of appellant's...
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