Moody v. State

• Decision Date: 22 April 1986
• Docket Number: 7 Div. 518
• Citation: 495 So.2d 104
• Parties: Louie Clayton MOODY, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 104

495 So.2d 104

Louie Clayton MOODY, alias v.STATE.

7 Div. 518.

Court of Criminal Appeals of Alabama.

April 22, 1986.

Rehearing Denied May 27, 1986.

Kathleen M. Warren, Gadsden, for appellant.

Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.

TYSON, JUDGE.

Louie Clayton Moody was indicted for murder in violation of § 13A-6-2,Code of Alabama 1975.The jury found the appellant guilty of the lesser included offense of manslaughter.The trial judge set sentence at twenty years' imprisonment in the penitentiary.

Lena Eastland testified that during the evening of March 2, 1984, the appellant, Moody, came to her house looking for some drugs.Eastland told him she did not have any drugs.When the appellant asked her where he could get some, Eastland replied that Sally Harvey, who was present at her house, had some drugs.Also present in the house were the victim, Lester Wayne Fleming, his father, Harry Fleming, the appellant's sister, Willie Dean Harris, and Eastland's two daughters.

The appellant, Moody, bought some drugs from Harvey and left.Eastland noticed a gun in the appellant's pocket as he left.

A while later, the appellant called Eastland on the phone.Moody wanted to know if he could buy drugs from Harvey again.Eastland told him to call Harvey at her house and hung up.The appellant immediately called back and asked Eastland to call Harvey.She told Moody no and hung up again.The appellant, Moody, called a third time and talked to his sister.

A short while later, the victim, his father, the appellant's sister and Eastland were all in Eastland's bedroom drinking and "getting high."The victim was standing beside the dresser.Two shots came through the bedroom, one of which struck the victim in the head.The victim died as a result of this gunshot wound to the head.

Randall Gargone testified that, on the evening of March 1, 1984, he picked up the appellant.The appellant, Moody, told him he wanted to go to Eastland's house.Gargone drove the appellant to the street on which Eastland lived and let him out twenty-five yards from Eastland's house.As the appellant got out of the car, Gargone observed the appellant carrying something that "looked like a gun."(R. 32).The appellant then walked to the front of Eastland's house.

While Gargone was waiting for the appellant to return, he heard two gunshots.Gargone then left.

Several weeks later, Gargone saw the appellant.The appellant, Moody, told Gargone that he better keep his mouth shut about "that night over at Lena's" or he would blow his head off.(R. 34)

Wendy Robinson testified that she saw the appellant, Moody, several days after this shooting occurred.The appellant told her, "I didn't go to kill Lester.I was out to kill that bitch and my sister.You know they sold me some baking soda, $300 worth of baking soda for some cocaine."(R. 44)

The appellant testified that he went to Eastland's house twice on March 1, once in the afternoon and once again that evening.His girl friend, Illene Perry, was with him both times but she did not go inside on either occasion.On the second visit to Eastland's house, the appellant, Moody, bought some cocaine from Eastland.Although Harvey was at Eastland's house then, his sister was not.

The appellant and Perry then went to the appellant's father's house.While there, Perry left the appellant for ten to fifteen minutes.When Perry returned, they went to a motel.The appellant snorted the cocaine he purchased from Eastland.

The appellant, Moody, called Eastland twice from the motel.At some point, the appellant and Perry left the motel to get some food and he was arrested.

The appellant denied any involvement in the shooting.

Perry's testimony was similar to the appellant's testimony.

I

During the cross-examination of Eastland, defense counsel questioned her concerning two written statements which she gave to the police.The first statement was made on March 2, 1984, the day after the shooting occurred.The second statement was made on May 23, 1985, some fifteen months after her first statement.The second statement differed substantially from the first statement.In her second statement, Eastland said that the appellant purchased cocaine from Harvey at her house on the night in question and that she saw a gun on his person at that time.Her first statement made no mention of either of these important facts.That statement contained no reference to any drugs or a gun.Also contained in the second statement was the fact that the appellant had called her and wanted more drugs after he had made the initial purchase of cocaine.

During cross-examination, defense counsel asked Eastland if she made the second statement after she was indicted for selling cocaine from her house.The prosecutor's objection to this question was sustained by the trial judge.Defense counsel then attempted to ask the witness if she had been indicted but the trial judge again sustained the prosecutor's objection to this question.

Defense counsel, out of the presence of the jury, argued to the trial judge that her questions to Eastland were an attempt to show bias of Eastland in favor of the State.She stated that she was trying to show that Eastland changed her story after she had been charged with the sale of cocaine.The trial judge rejected her argument.

The appellant now contends the trial judge erred by not allowing the cross-examination of Eastland concerning her indictment on cocaine charges.We agree.

"Manifestly, the right of an accused to cross examine the witnesses against him is embodied in the confrontation clause of the Sixth Amendment, Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347(1974).Indeed, 'cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested,'Ibid., 415 U.S. at 316, 94 S.Ct. at 1110.

"Although the scope and extent of cross-examination is generally declared to be within the sound discretion of the trial court and not to be interfered with by an appellate court absent an abuse of discretion, Grant v. United States, 5 Cir.1966, 368 F.2d 658, 661, that discretion must be exercised with due regard for the defendant's constitutional rights.Specifically, it 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.Davis v. Alaska, supra, 415 U.S. at 318, 94 S.Ct. 1105.

"An accused is entitled to show by cross-examination that the testimony of a witness may be affected by fear or favor growing out of the disposition of pending criminal matters.Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624(1931)."

United States v. Brown, 546 F.2d 166, 169(5th Cir.1977).

"A more particular attack on the witness' credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand.The partiality of a witness is subject to exploration at trial, and is 'always relevant as discrediting the witness and affecting the weight of his testimony'.3A J.Wigmore, Evidence § 940, p. 775(Chadbourn rev. 1970).We have recognized that the exposure of a witness'motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377(1959)."

Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347(1974).

In light of these authorities, it is clear to this court that the trial judge abused his discretion in this instance by not allowing defense counsel to cross-examine Eastland about her pending indictments.Defense counsel was trying to find out whether Eastland's testimony or her second statement were affected by the fact that she had been indicted on cocaine charges.Certainly the fear of prosecution of Eastland by the State might cause her to testify favorably on behalf of the State.Moreover, defense counsel should have been allowed to determine if any promises of leniency had been made to Eastland in return for her testifying favorably to the State.

However, defense counsel was not allowed to inquire as to Eastland's motivation for her testimony which would indicate a bias against this appellant.Thus, the trial judge here abused his discretion by restricting the appellant's Sixth Amendment right of proper confrontation and cross-examination.United States v. Crumley, 565 F.2d 945(5th Cir.1978).

Furthermore, in Alabama, "[t]he bias of a state's witness in favor of the State or against the accused may be shown by evidence of statements, acts, relationships or charges of crime, that would reasonably give rise to an inference that the witness is biased."C. Gamble, McElroy's Alabama Evidence, 149.01(10)(3rd ed. 1977).See alsoWaters v. State, 360 So.2d 358(Ala.Crim.App.), writ denied, 360 So.2d 367(Ala.1978).Clearly, error was committed by the trial judge's limiting defense counsel's cross-examination of Eastland concerning an indictment against her.

(A)

The State, in its brief, argues that a reversal is not mandated in this case on two grounds.

First, the State contends that defense counsel did not lay a proper predicate for showing bias because she did not ask Eastland the state of her feelings towards the appellant before she asked Eastland about her indictment.In Wells v. State, 292 Ala. 256, 292 So.2d 471(1973), the Alabama Supreme Court addressed the issue whether a witness must be asked as to the state of his feelings towards the defendant as a condition precedent to asking the witness a specific question concerning his bias against the defendant.In Wells, supra, the Supreme Court...