Ray v. State, CR-05-0912.

• Decision Date: 29 June 2007
• Docket Number: CR-05-0912.
• Parties: Thomas Chester RAY, Jr. v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

52 So.3d 547

Thomas Chester RAY, Jr.

v.STATE of Alabama.

CR-05-0912.

Court of Criminal Appeals of Alabama.

April 27, 2007.

Rehearing Denied June 29, 2007.

William R. Willard, Gadsden, for appellant.

Troy King, atty. gen., and John J. Davis, asst. atty. gen., for appellee.

On Application for Rehearing

PER CURIAM.

This Court's opinion of January 12, 2007, is hereby withdrawn and the following is substituted therefor.

The appellant, Thomas Chester Ray, Jr., was convicted of sexual abuse in the first degree, a violation of § 13A-6-66(a)(1), Ala.Code 1975. He was sentenced to 10 years in the state penitentiary.

The State's evidence tended to show the following: The victim, M.M.,¹ who is mentally retarded, testified that she lived with her mother and Ray when she was around 9 or 10 years of age. She said that on two occasions Ray made her put lotion on his "privates" and rub him. M.M. also testified that he told her not to tell anyone or he would beat her. She said that Ray was physically abusive and beat her with shoes, switches, and belts.

The testimony also showed that M.M. and her sister were removed from their mother in 2003 and that a guardian was appointed for the children at that time. M.M. told her guardian that Ray made her put lotion on his penis. The guardian testified that she immediately reported M.M.'s statement to the Department ofHuman Resources. Ray was ultimately charged with sexual abuse in the first degree.

Ray testified in his own defense and was questioned about a statement he gave to Detective Teri Davis of the Gadsden Police Department. In the statement Ray told police that he had never touched the victim in a sexual way. The circuit court then allowed the prosecutor to question Det. Davis about a prior juvenile adjudication that was also brought out during Ray's statement to Det. Davis.

I.

Ray first argues that the circuit court erred in allowing the State to impeach him with evidence about a prior juvenile adjudication from the State of Ohio. Specifically, he argues that the admission of the juvenile adjudication to impeach him violated Rule 609(d), Ala.R.Evid., and statutory law.

Rule 609(d), Ala.R.Evid., provides: "[E]vidence of a juvenile or youthful offender adjudications is not admissible under this rule." Section 12-15-72(b), Ala.Code 1975, provides in part: "The disposition of a child and evidence given in a hearing in the court shall not be admissible as evidence against him in any case or proceeding in any other court whether before or after reaching majority...."

The State argues that Ray opened the door to the introduction of evidence of the prior juvenile adjudication when he discussed the prior juvenile adjudication in his statement to Det. Davis. The State further asserts that the prior juvenile adjudication was properly admitted to show motive.

During Ray's direct examination, the following occurred:

"[Defense counsel]: At any time did you make a statement to law enforcement?

"[Ray]: Yes, I did.

"[Defense counsel]: And do you remember, in essence—

"[Prosecutor]: Excuse me, Your Honor, could we approach the bench?

"The Court: Sure.

"(Whereupon, the following proceedings were had before the Court at the bench, to-wit:)

"[Prosecutor]: Judge, I just wanted to point out that at this point she's asking him about the statement. During the course of the statement there were conversations—

"The Court: Have you got the statement?

"[Prosecutor]: Yes, sir, I have the written statement and I have the notes from the oral statement, as well, both of which she has. There's his written statement—

"[Defense counsel]: Yes, sir.

"[Prosecutor]: —which does not refer to it, but the other page does.

"The Court: I got it down. Go ahead. Step back.

"(Whereupon, the following proceedings were had before the Court and the jury, to-wit:)

"[Defense counsel]: Did you have occasion to make a written statement to Gadsden law enforcement?

"[Ray]: Yes, I did.

"[Defense counsel]: And in essence, what did that say?

"[Ray]: It basically said I have never touched the girl in a sexual way the whole time I've known her."

(R. 243-45.)

The circuit court then allowed the prosecutor to question Ray about other portions of this statement. Specifically, in this statement Ray told Det. Davis that there had been a previous incident with his 8-year-old niece when he was in Cleveland, Ohio; that he was only 16 years old at the time of the incident; that the incident involved "sexual contact"; and that he had completed a sex-offender-treatment program as a result of that offense. Although only that portion of Ray's statement in which he denied any sexual contact with the victim in the present case was reduced to writing, during the colloquy outside the presence of the jury the circuit court ascertained from Det. Davis that Ray had admitted the juvenile adjudication during the same conversation.

Alabama has long held that when one party introduces a portion of a conversation, the opposing party has the right to introduce the remainder of that conversation to the extent that it relates to the subject matter of the part of the conversation already introduced. See Flournoy v. State, 34 Ala.App. 23, 27, 37 So.2d 218, 221 (1948) ("When a part of a conversation or transaction is put in evidence, the opposite party may rightfully call for the whole of it, although the evidence was in the first place illegal. Gibson v. State, 91 Ala. 64, 9 So. 171 [ (1891) ]." (emphasis added)). This doctrine is often referred to as the doctrine of completeness.

Rule 106, Ala.R.Evid., now addresses this doctrine and provides, in part:

"When a party introduces part of either a writing or recorded statement, an adverse party may require the introduction at that time of any other part of the writing or statement that ought in fairness to be considered contemporaneously with it."

However, Rule 106, Ala.R.Evid., does not apply to oral statements.

In Stockard v. State, 391 So.2d 1060 (Ala.1980), the Alabama Supreme Court relied on the doctrine of completeness to hold that the circuit court correctly allowed the introduction of an entire conversation held outside of the defendant's presence after the defendant first introduced a portion of that conversation into evidence. In reversing this Court's decision in Stockard v. State, 391 So.2d 1060 (Ala.1979), the Supreme Court stated:

"We conclude that this holding by the Court of Criminal Appeals is in conflict with this Court's opinion in Logan v. State, 291 Ala. 497, 282 So.2d 898 (1973), wherein it was stated:

" '... [W]hen part of a conversation or transaction is put in evidence, the opposite party may rightfully call for the whole of it, although the evidence was in the first place illegal. Gibson v. State, 91 Ala. 64, 9 So. 171 [ (1891) ]. Further, it has been held that when the defendant, on cross-examination of a witness elicits part of a conversation, the State may in rebuttal show the entire conversation. Davis v. [State], 131 Ala. 10, 31 So. 569 [ (1902) ]; Flournoy v. State, 34 Ala.App. 23, 37 So.2d 218 [ (1948) ].'

"It appears to us that the Court of Criminal Appeals, in applying the rule that one party can show the entire conversation when the opposing party has introduced a portion of it, made a distinction between admissible and inadmissible hearsay. We do not think that Logan authorizes such a distinction. The rule of admissibility has been explained in McElroy's Alabama Evidence as follows:

" 'It is generally said, although sometimes loosely, that if one party proves any part of an oral conversation or oral statement, the other party has the right to prove all that was said on the same occasion (citing Logan v. State). More correctly stated, the general rule is that only so much of the remainder of the statement orconversation is admissible as relates to the subject-matter of the part brought out by the opponent.'

"C. Gamble, McElroy's Alabama Evidence § 316.01 (1977). Thus, relevancy to the subject matter brought out is the standard by which a party might call for the remainder of a conversation partially proved by his opponent."

391 So.2d at 1064. This rule of admissibility has frequently been applied in Alabama cases. See, e.g., Ex parte Tucker, 474 So.2d 134, 135 (Ala.1985) ("[W]hen one party brings out part of a transaction or conversation, the other party may inquire further into the matter or bring out the whole subject for further examination."); Logan v. State, 291 Ala. 497, 502, 282 So.2d 898, 903 (1973) ("[W]hen the defendant, on cross-examination of a witness elicits part of a conversation, the State may in rebuttal show the entire conversation."); Lewis v. State, 549 So.2d 620, 622 (Ala.Crim.App.1989) ( "[W]hen a portion of a witness's statement is received into evidence, the opposing party has the right to have the entire statement admitted into evidence."); and Charles W. Gamble, McElroy's Alabama Evidence § 316.01 (5th ed. 1996) ("If one party proves any part of an oral conversation or oral statement, the other party has the right to prove the relevant remainder."), and the cases cited therein. See also Calhoun v. State, 932 So.2d 923, 959 (Ala.Crim.App.2005); McClellan v. State, 452 So.2d 909 (Ala.Crim.App.1984).

Moreover, many other jurisdictions follow the holding in Stockard. See Walters v. State, 206 S.W.3d 780, 785 (Tex.App.2006) ("Rule 107 [Tex.R.Evid., the rule of completeness] is one of admissibility and permits the introduction of otherwise inadmissible evidence when that evidence is necessary to fully and fairly explain a matter 'opened up' by the adverse party."); Barone v. State, 841 So.2d 653, 655 n. 2 (Fla.Dist.Ct.App.2003) ("The 'opening the door' concept permits the admission of otherwise inadmissible evidence to 'qualify, explain, or limit' previously admitted evidence."); Nickell v. Russell, 260 Neb. 1, 11, 614 N.W.2d 349, 357 (2000) (hearsay evidence admissible to "explain and place into accurate context those portions of ... testimony offered by [the defendant]."); State v. Eugenio, ...