Phillips v. State
Decision Date | 15 April 1988 |
Citation | 527 So.2d 154 |
Parties | Ex parte State of Alabama. (re David PHILLIPS v. STATE of Alabama). 87-52. |
Court | Alabama Supreme Court |
J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for petitioner.
L. Dan Turberville, Birmingham, for respondent.
David Phillips was convicted of robbery in the third degree and was sentenced to 15 years' imprisonment. Relying on Ex parte Peagler, 516 So.2d 1369 (Ala.1987), the Court of Criminal Appeals reversed his conviction, 527 So.2d 152 (Ala.Crim.App.1987). The court reasoned that it was reversible error for the State to cross-examine Phillips about his prior convictions because the State did not have certified copies of his prior convictions at trial. After careful review, we are of the opinion that there was no basis for reversal of Phillips's conviction on the grounds relied on by the court below. Accordingly, we reverse.
Prior to the commencement of the State's case, Phillips informed the court that he believed that the prosecution would attempt to introduce evidence of a prior conviction for possession of heroin, and he asked the court not to allow the State to introduce any evidence of such a conviction. As grounds for that request, which we construe as a motion in limine, Phillips argued that the prosecution did not have a certified copy of the conviction and that the crime was not one of moral turpitude. From the record:
At trial, Phillips testified in his own defense. On direct examination by his own attorney, the following transpired:
On cross-examination by the State, the following occurred:
On appeal of Phillips's conviction, the Court of Criminal Appeals held as follows:
"While it is true that there were no objections made when the appellant was questioned about his prior convictions, and admitted same on cross-examination, nevertheless, we are of the view that the colloquy herein quoted [i.e., the pre-trial motion in limine] preserves the issue of the State's lack of certified copies of the appellant's prior convictions for review by this Court."
Phillips v. State, 527 So.2d at 152 (Ala.Crim.App.1987). 1
Relying on this Court's holding in Ex parte Peagler, 516 So.2d 1369 (Ala.1987), the court went on to hold that it was reversible error for the State to cross-examine Phillips about his prior convictions, because the State did not have certified copies of his prior convictions at trial. For the reasons set out below, the court was in error in reversing Phillips's conviction.
It is an established principle of law that objections to evidence cannot be raised for the first time on appeal. To be reviewable, error must be preserved by properly invoking adverse rulings by the trial court. An objection to the evidence must be made and grounds stated therefor, or the objection and any error are deemed to have been waived. Ala.R.Civ.P. 46; Alford v. State Farm Fire & Casualty Co., 496 So.2d 19 (Ala.1986); Conley v. Beaver, 437 So.2d 1267 (Ala.1983); Bell v. State, 466 So.2d 167 (Ala.Crim.App.1985).
In its opinion, the court below held that the issue of the State's lack of certified copies of Phillips's convictions was preserved for appellate review. 2 We disagree. As the court noted in its opinion, Phillips never objected to cross-examination by the State on his prior convictions. His failure to so object waived any alleged error and leaves nothing for appellate review. Furthermore, the pre-trial colloquy noted above, even taking it as the presentation of a motion in limine, did not, as the court below held and as respondent argues in brief, preserve any error for review. It is the law Liberty National Life Ins. Co. v. Beasley, 466 So.2d 935, 936 (Ala.1985). Not only did the respondent's pre-trial motion in limine not preserve anything for review, but we believe that the trial court never made a ruling thereon. And, if it did, it was a ruling favorable to the respondent. 3
Notwithstanding the foregoing, there are other reasons why there is no reversible error in this case. In his motion in limine, respondent sought to exclude evidence of a prior conviction for possession of heroin. At trial, the only prior convictions that were brought out were for theft of property. Even if we were to assume that respondent's motion in limine is sufficient to preserve error, and it is not, he cannot predicate error on its denial, because that motion did not speak in any way to the alleged error now complained of. 4 Harris v. State, 420 So.2d 812 (Ala.Crim.App.1982) ( ).
Finally, respondent himself brought out the evidence of his prior convictions for theft of property on direct examination. Under the doctrine of invited error, a defendant cannot by his own voluntary conduct invite error and then seek to profit thereby. There are numerous decisions which hold that a defendant cannot predicate error upon admission of testimony that is elicited by defense counsel and is responsive to defense questions. See, e.g., Ringer v. State, 489 So.2d 646 (Ala.Crim.App.1986) ; Lacy v. State, 484 So.2d 1192 (Ala.Crim.App.1986); Crittenden v. State, 414 So.2d 476 (Ala.Crim.App.1982); Williams v. State, 383 So.2d 547 (Ala.Crim.App.1979), affirmed, Ex parte Williams, 383 So.2d 564 (Ala.1980), cert. denied, 449 U.S. 995 (1980). By testifying about his prior convictions for theft of property, respondent opened the door for the prosecution to cross-examine him about these convictions. Smith v. State, 409 So.2d 455 (Ala.Crim.App.1981); Travis v. State, 397 So.2d 256 (Ala.Crim.App.1981) cert. denied, 397 So.2d 265 (Ala.1981); Knowles v. State, 364 So.2d 712 (Ala.Crim.App.1978).
Having determined that it was error for the court below to reverse respondent's conviction, we think it necessary to point out that our holding in Ex parte Peagler, 516 So.2d 1369 (Ala.1987), has no application under the facts of this case. Moreover, we would also point out that on rehearing in Peagler, this Court made it...
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