Timmons v. State, 3 Div. 84
| Decision Date | 07 January 1986 |
| Docket Number | 3 Div. 84 |
| Citation | 487 So.2d 975 |
| Parties | Clarence TIMMONS, Jr. v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Robert M. Beno, Montgomery, for appellant.
Charles A. Graddick, Atty. Gen. and P. David Bjurberg, Asst. Atty. Gen., for appellee.
Clarence Timmons, Jr. was indicted and convicted for the attempted murder of Lowndes County Sheriff John Hulett. Sentence was life imprisonment.
Timmons argues that at trial the State should have been required to prove that he had a prior conviction for robbery and that the prosecution committed error in questioning him about an indictment for robbery and a conviction for grand larceny. The apparent confusion generated by this issue is caused by the fact that, although Timmons was charged with robbery, he pled guilty to a reduced charge of grand larceny with a five-year sentence. However, at the preliminary hearing and at trial, Timmons testified that he had been convicted of robbery.
Timmons testified at his preliminary hearing. Defense counsel's third question to Timmons was, "Would you tell us what your record is?" Timmons responded, "Well, strong armed robbery." Timmons testified that the robbery conviction was in 1976 and that he also had a conviction for felony escape in 1978.
At a pretrial hearing on the voluntariness of Timmons' confession, the assistant district attorney, in cross examining Timmons, asked whether he had signed a waiver of rights form "when you were charged with robbery back in 1979." Defense counsel interrupted the cross examination and stated, "If the district attorney makes a comment to the effect of the defendant having been charged with robbery in 1976 at trial, we will immediately move for a mistrial in that there is no record of a conviction for robbery in Lowndes County." (Emphasis added.) The trial court granted what it considered to be a motion in limine and ordered that there be no reference to the word "robbery" and instructed the prosecutor that at trial he would be limited to impeachment based on "what he was actually convicted of."
At trial, in presenting a defense, Timmons called County Commissioner Charles Smith, who testified that Timmons had a good general reputation and a good general reputation for truth and veracity in the community. On cross examination, the prosecutor asked over the objection of defense counsel whether The witness acknowledged that he had heard that but testified that he still thought that Timmons had a good character.
The prosecutor's cross examination of Commissioner Smith was proper. "[I]f a witness testifies at the calling of the accused to the accused's good general reputation as a whole, the state, on cross-examination, may ask such witness whether, prior to the time of the alleged offense, he heard reports, rumors or statements derogatory of the accused." C. Gamble, McElroy's Alabama Evidence § 27.01(5) (3d ed.1977). See also Aaron v. State, 271 Ala. 70, 83, 122 So.2d 360, 371 (1960); Wedgeworth v. State, 450 So.2d 195, 196 (Ala.Cr.App.1984).
After testifying at the preliminary hearing but before trial, witness Willie Smith died. At trial, the defense introduced Smith's prior testimony. In that testimony, Smith admitted having been convicted of robbery in 1977 and that Timmons "was involved in the same robbery."
At trial, Timmons testified on his own behalf. In response to his lawyer's questions on direct examination, he testified that he had "been in trouble before with the law," that he had served time in the county jail but never in the penitentiary, and that he did not know which specific crimes he had been charged with but that
On cross examination, the prosecutor revived this line of questioning and the following occurred:
At this point, defense counsel made his objection at the bench, outside of the hearing of the jury, and demanded that the State prove that Timmons had a conviction for robbery.
From the record before this Court, it is a fact that Timmons was indicted for robbery but pled guilty to grand larceny. When the trial judge stated that this was his understanding, defense counsel stated, This denial prompted the trial court to ask defense counsel, "Does truth have anything to do with this?"
Defense counsel rejected the trial court's offer to stipulate to the jury that Timmons had only been convicted of grand larceny. The trial court tendered this suggestion after defense counsel complained that the prosecution had left the jury with the impression that Timmons had been convicted for robbery.
In its oral charge to the jury, the trial court stated:
At the sentencing hearing, the State proved, through the introduction of certified copies of the minute entries, that Timmons had two prior convictions: a 1978 conviction for escape and a 1977 conviction for grand larceny. This last minute entry shows that Timmons was indicted for robbery, that the robbery charged was reduced, and that Timmons pled guilty to grand larceny and received a five-year sentence. The trial court denied the State's application that Timmons be treated as a habitual offender "simply so that the Appeals Court doesn't have to be concerned with whether or not the record is appropriately clear." The trial court sentenced Timmons to life, finding that "[t]he facts of this case are such on their own merit and without consideration of any application of the habitual offender act to justify life in the penitentiary." With two prior felony convictions, the mandatory sentence under the Habitual Felony Offender Act was "imprisonment for life or for any term of not less than 99 years." Alabama Code 1975, Section 13A-5-9(b)(3).
The rule is that a defendant, testifying for himself, cannot be cross examined, against his objection, as to former indictments against him for other offenses. Smith v. State, 79 Ala. 21, 23 (1885). "As a general rule, however, a defendant who takes the stand in his own behalf during a criminal trial can be questioned on cross examination about prior convictions for crimes involving moral turpitude." Ex parte McIntosh, 443 So.2d 1283, 1284 (Ala.1983). Both robbery and grand larceny are crimes involving moral turpitude. McElroy §§ 145.01(9)(k) and (q).
Since the confusion over whether Timmons had been convicted of robbery or grand larceny was perpetrated by Timmons himself, we find that Timmons has nothing about which to complain that was not caused by his own creation. The record affirmatively shows that before trial defense counsel knew that Timmons "thought" he had been convicted of "armed robbery" and that, at trial and before Timmons testified, counsel also knew that his client had not been convicted of robbery but had been "convicted of grand larceny in that matter." This matter approaches the doctrine of invited error under which a defendant cannot by his own voluntary conduct invite error and then seek to profit thereby. Dunn v. State, 277 Ala. 39, 43, 166 So.2d 878, 881 (1964); Russell v. State, 202 Ala. 21, 22, 79 So. 359, 360 (1918); Travis v. State, 397 So.2d 256, 262 (Ala.Cr.App.), cert. denied, 397 So.2d 265 (Ala.1981).
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