Rowe v. State, 5 Div. 312
| Decision Date | 18 February 1988 |
| Docket Number | 5 Div. 312 |
| Citation | 522 So.2d 328 |
| Parties | William Lewis ROWE v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Charles R. Gillenwaters, Alexander City, for appellant.
Don Siegelman, Atty. Gen., and Kenneth S. Nunnelley, Asst. Atty. Gen., for appellee.
William Lewis Rowe was convicted for first degree burglary and first degree rape. He was sentenced to two concurrent terms of life imprisonment as a habitual offender. On this appeal from those convictions, Rowe argues that evidence of his prior convictions was improperly admitted at trial.
Immediately before the State called its last witness in its case in chief, a hearing was held, outside the presence of the jury, to determine the admissibility of the defendant's prior convictions. The trial court held that "all of the prior rape convictions and sex related convictions of the defendant are admissible in evidence" based on that part of the case of Oglen v. State, 440 So.2d 1172, (Ala.Cr.App.), cert. denied, Ex parte Oglen, 440 So.2d 1177 (Ala.1983), which he interpreted as holding that "prior convictions would be admissible evidence on the issue of consent."
The State then called the Circuit Clerk of Tallapoosa County and introduced State's Exhibits Number 2, 3, and 4, identified only as "documents from the Superior Court of Fulton County." Although admitted into evidence, these exhibits have not been included in the record on appeal. Reference to the arguments concerning the admissibility of these exhibits at trial only discloses that the exhibits were identified as "two charges from January of 1972 where he was convicted of ... aggravated assault with intent to rape" and "plea transcripts from the two 1979 convictions."
The record contains no further mention of the defendant's prior convictions until the defendant himself took the witness stand and testified in his own defense. On direct examination of the defendant by his own attorney, the following occurred:
On cross-examination of the defendant by the assistant district attorney, the following transpired:
There was no objection to this testimony.
This Court has considerable doubt about the propriety of the admission of the defendant's prior convictions. Anonymous v. State, 507 So.2d 972 (Ala.1987), and Ex parte Cofer, 440 So.2d 1121 (Ala.1983); Phillips v. State, 505 So.2d 1075, 1078-79 (Ala.Cr.App.1986); C. Gamble, McElroy's Alabama Evidence § 70.01(22) (3rd ed.1977). The case of Oglen, supra, is factually distinguishable. However, we need not reach that issue.
Once the defendant took the witness stand, those prior convictions were admissible for purposes of impeachment. McElroy at § 145.01. Any error in the admission of the prior convictions as part of the State's case in chief was reduced to harmless error when the defendant testified, without objection, on his own behalf and admitted those prior convictions. Ex parte Williams, 484 So.2d 503 (Ala.1986). "A defendant cannot complain of the admission of improper evidence when he himself has testified to the same facts." Lewis v. State ex rel. Evans, 387...
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