Neary v. State

• Decision Date: 08 January 1985
• Docket Number: 6 Div. 443
• Citation: 469 So.2d 1321
• Parties: John Charles NEARY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1321

469 So.2d 1321

John Charles NEARY v. STATE.

6 Div. 443.

Court of Criminal Appeals of Alabama.

Jan. 8, 1985.

J. Wilson Dinsmore, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

BOWEN, Presiding Judge.

John Charles Neary was indicted and convicted under a three-count indictment charging trafficking in cannabis and cocaine and the possession of various controlled substances. Alabama Code 1975, §§ 20-2-80(1), (2) and § 20-2-70(a). The sentences for the trafficking convictions were 25 years' imprisonment and a $25,000.00 fine and 25 years' imprisonment and a $50,000.00 fine. The sentence for the possession conviction was 15 years' imprisonment and a $20,000.00 fine.

I

These convictions must be reversed because the trial judge erroneously charged the jury that Neary had a prior conviction for a crime involving moral turpitude.

At trial, on cross examination by the prosecution, Neary testified, without objection, that in 1976 in New York he pled guilty to a misdemeanor for possession of marijuana and was sentenced to three years' probation and received a $3,000.00 fine.

In instructing the jury, the trial judge stated:

"Now, concerning the testimony of the witness, you have heard evidence of the testimony that the defendant has previously been convicted of, and I don't remember the exact charge as it was listed out of the State of New York, but it was possession of marijuana, as I recall it, in the State of Alabama we would call it violation of uniform Alabama controlled substances act, however, since it is out of a different jurisdiction I believe it would be possession of marijuana out of New York. Now, this is known as a crime involving moral turpitude. Now, as a matter of law, it is the law that if a witness has heretofore been convicted of a crime involving moral turpitude it goes to his credibility as a witness. In other words, you may take this into account in determining how much weight and how much credibility you will give to his testimony as a witness and that is the sole purpose for which this evidence is admitted. Now, you might in some way think that since he was guilty of an offense in New York that that makes him guilty of this. That is not the reason for which that testimony is admitted. That testimony was admitted because it has been determined that that offense is what is known as a crime involving moral turpitude and as I said, that is the sole purpose for which that testimony was admitted as to how that would weigh as to his credibility as a witness."

Proper and timely objection was made to this portion of the oral charge.

A conviction for an offense involving moral turpitude can affect a defendant's credibility and the weight the jury is to give his testimony. Johnson v. State, 292 Ala. 208, 210, 291 So.2d 336 (1974); Alabama Code 1975, § 12-21-162. "[A] defendant himself may be examined only as to his prior convictions of crimes involving moral turpitude." Peyton v. State, 40 Ala.App. 556, 565, 120 So.2d 415 (1959), cert. denied, 270 Ala. 740, 120 So.2d 429, cert. denied, 364 U.S. 870, 81 S.Ct. 114, 5 L.Ed.2d 93 (1960). "In cross-examining a witness for the purpose of impeaching him by showing the commission of a crime involving moral turpitude, care should be exercised so as not to include an offense that does not involve moral turpitude." Kennedy v. State, 371 So.2d 464, 468 (Ala.Cr.App.1979).

The misdemeanor and felony offenses of possession of marijuana are not crimes involving moral turpitude. Ex parte McIntosh, 443 So.2d 1283 (Ala.1983); Luker v. State, 361 So.2d 1124 (Ala.Cr.App.), cert. dismissed, 361 So.2d 1127 (Ala.1978). Consequently, the defendant should not have been cross examined about his prior convictions for possession of marijuana and the jury should not have been instructed that such convictions involved moral turpitude and affected the defendant's credibility. The giving of the erroneous instructions constitutes reversible error. United States v. Poole, ...