Moseley v. State, 3 Div. 763

• Citation: 448 So.2d 450
• Decision Date: 31 January 1984
• Docket Number: 3 Div. 763
• Parties: Lorene MOSELEY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 450

448 So.2d 450

Lorene MOSELEY v. STATE.

3 Div. 763.

Court of Criminal Appeals of Alabama.

Jan. 31, 1984.

Rehearing Denied March 20, 1984.

Benjamin E. Pool, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for appellee.

SAM TAYLOR, Judge.

Lorene Moseley was convicted by a Montgomery County jury of sexual abuse in the first degree and was given a suspended sentence of five years' imprisonment. She appeals on eleven different grounds.

The facts of this case are particularly sordid; appellant's conviction arises from her attempt to induce her twelve-year-old daughter to commit and submit to certain sexual acts with a man who was the appellant's boyfriend. The child, who lived with her grandmother, went to visit her mother on a Sunday, at her mother's request. On Monday night she was forced by her mother to commit sodomy with her mother's boyfriend despite the fact that, in the child's words, "I kept begging her not to make me do it...."

The girl was taken back home on Tuesday night and on Wednesday she told her grandmother what had happened; her grandmother then took her to the hospital and to the police station.

I

Appellant first challenges certain questions asked by the state during the cross-examination of a general reputation witness. Specifically, appellant contends that the questions were not framed so as to make it clear that they referred to acts which occurred before the instant offense. Our Supreme Court has stated that:

"When a witness testifies as to the general reputation or character of the defendant, the knowledge of the witness as to such reputation or character may be tested on cross-examination by asking him if he had heard of the defendant being charged with other offenses or of specific acts of bad conduct on the part of the defendant. Helms v. State, 254 Ala. 14, 47 So.2d 276, Kervin v. State, 254 Ala. 419, 48 So.2d 204; Johnson v. State, 260 Ala. 276, 69 So.2d 854. The better practice is to frame the question so as to inquire of the witness if he had heard of such occurrence prior to the commission of the offense for which the defendant is on trial. Ragland v. State, 178 Ala. 59, 59 So. 637." Aaron v. State, 271 Ala. 70, 122 So.2d 360 (1960), aff'd, 273 Ala. 337, 139 So.2d 309 (1961); writ denied, 275 Ala. 377, 155 So.2d 334 (1963), rev'd on other grounds, 283 Ala. 52, 214 So.2d 327 (1968), judgment modified, 49 Ala.App. 402, 272 So.2d 609 (1973).

We think it clear from an examination of the record that the questions in issue impliedly referred to a time before the alleged sexual abuse took place. The relevant portions of the record read as follows:

"Q And have you also heard about the times when she wasn't living out of wedlock with other men, her frequency of attending bars at night and running around town, leaving her children to her mother?

"MR. POOL: We object to that, Your Honor.

"THE COURT: It goes to the weight of this witness's testimony.

"Q I ask you again, have you heard about the times when Lorene was not married or not living with someone, about the nights that she would hang out in bars and not come home and leave the children solely to her mother?

"A I heard--her mother did tell me things to that effect.

"Q Yes.

We do not feel the court erred in overruling the objection. We note further that the objection did not assign specific grounds but was merely a general objection.

II

During the cross-examination of the twelve-year-old victim in this case, defense counsel questioned her extensively concerning an alleged statement she had made at the time of the preliminary hearing in which she said that she had lied about the entire incident and that she did not want to testify. The state then called the investigator to whom the original complaint had been made. Through this investigator, the state undertook to prove a prior consistent statement. The usual rule is that when a witness has been impeached by a prior inconsistent statement, the proponent of that witness is not allowed to counter the impeachment through the introduction of evidence of a prior consistent statement. Murphy v. State, 355 So.2d 1153 (Ala.Cr.App.1978). However, as the Murphy case points out, "there is an exception to the principle, to be found in 'prior' consistent statements by victims of rape or other sex offenses." That rule is stated in C. Gamble, McElroy's Alabama Evidence, § 178.01 (3d Edition 1977), in pertinent part as follows:

"Where the testimony of the prosecutrix is impeached by proof of self-contradictory statements ... the prosecution may prove her complaints in detail."

Thus, no error occurred in this respect.

III

Appellant contends that it was reversible error to fail to compel the state to turn over to her a copy of a statement made by a state witness, after that witness had testified. The trial court did conduct an in camera inspection of the statement, at the conclusion of which the court denied the defense motion for production. Production for inspection of a statement of a prosecution witness after the witness has testified lies within the sound discretion of the trial judge. Ex parte Pate, 415 So.2d 1140 (Ala.), on remand, 415 So.2d 1145 (Ala.Cr.App.1981). The statement itself was not made part of the record. We can only conclude that after the in camera inspection the trial court determined that the statement made by the witness before trial did not differ in any substantial respect from the testimony during trial, that the statement did not contain material exculpatory to the defendant, and that the statement requested was not of such a nature that, without it, the defendant's trial would be fundamentally unfair. Thus, we find no error.

IV

Appellant next contends that the court erred in permitting the following exchange to occur:

"Q Did you ever hear about the time back in 1976 when she was arrested for filing a fraudulent false statement?

"A No.

"MR. POOL: We object to that, Your Honor, unless he can prove these allegations.

"MR. MENDELSOHN: Judge, I'm entitled to ask have you heard if I have a good faith belief it's true. I have a rap sheet here that shows she did it, and I'll be glad to tender it to the Court and present it to the jury.

"MR. POOL: All right, we ask that he be compelled and required to do so, Your Honor.

"THE COURT: Y'all come up here. (Whereupon a discussion was held at the bench out of the hearing of the Court Reporter and jury.)"

On the basis of the authorities cited in I above, we find that the question was proper during cross-examination of a defense character witness. No error occurred in this respect.

V

Appellant next contends that the court erred in sustaining an objection to a question by defense counsel addressed to Miss Faulkner, an investigator with the Youth Aid Division of the Montgomery Police Department. The pertinent part of the transcript reads as follows:

"Q Did you also interview Deb Freeman?

"A I didn't; another investigator did.

"Q With regard to the results of those two interviews--

"MR. MENDELSOHN: Objection.

"THE COURT: Let's hear the question first.

"MR. MENDELSOHN: There had been a Motion in Limine, Judge.

"Q My question was simply going to be, to your knowledge were there any inconsistencies between the interview that Lorene granted and the one that Deb Freeman granted?

"THE COURT: Sustain the objection."

This witness had previously stated that she had not had any interview with Deb Freeman, an accomplice in the case. It would not make sense for her to testify regarding any alleged inconsistencies in the interview with the defendant and the interview which was, to her, hearsay. Thus, we find no error in this respect.

VI

Appellant's attorney contends that reversible error occurred in the following cross-examination of the grandmother about the victim:

"Q Have you had some problem in your mind about sex for a number of years?

"MR. MENDELSOHN: Objection.

"A Well, I think it's--

"THE COURT: Just a moment, please, ma'am, the gentlemen has made an objection.

"MR. MENDELSOHN: Relevancy, Judge. I hate to object, but we've been going on and on with stuff that I don't see how it has anything to do with whether or not on October the 10th or October the 11th this lady committed any type of sexual misconduct against this victim.

"THE COURT: I sustain.

"Q All right. Mrs. Sexton, you have had how many children, please, ma'am?

"A I have five living.

"Q Five. Let me ask you whether or not you told your son recently within the last thirty days that you had in effect been raped by your husband five times that resulted in five children?

"MR. MENDELSOHN: Objection.

"THE COURT: No, sir. Sustained.

"A No, sir, I've never been raped."

Appellant has no grounds for complaint since the question was answered in the presence of the jury. The court had already permitted the appellant to range far afield in allowing him to question the grandmother of the victim regarding her personal and private attitudes regarding her personal and private attitudes regarding sex.

VII

Appellant contends that the court erred in not permitting evidence relating to the past sexual behavior of the complaining witness. He asserts that the specific acts sought to be proved were part of the res gestae.

Alabama's rape shield statute, Section 12-21-203, Code of Alabama 1975, states in part that:

"(b) In any prosecution for criminal sexual conduct or for assault with intent to commit, attempt to commit or conspiracy to commit, sexual conduct, evidence relating to the past sexual behavior of the complaining witness ... shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or of other witnesses...."

The exception to this rule is that evidence of past sexual behavior of the victim which directly involves the participation of the accused may be considered by the jury as bearing on the issue of consent. Ala.Code § 12-21-203(c) (1975); Wooten v. State, 361 So.2d 1192 (A...