White v. State

• Decision Date: 07 June 1977
• Docket Number: 6 Div. 281
• Citation: 347 So.2d 566
• Parties: Johnny Joe WHITE, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 566

347 So.2d 566

Johnny Joe WHITE, alias v. STATE.

6 Div. 281.

Court of Criminal Appeals of Alabama.

June 7, 1977.

Rehearing Denied June 28, 1977.

Michael Crespi, Headland, for appellant.

William J. Baxley, Atty. Gen., Montgomery, and Barry V. Hutner, Asst. Atty. Gen., Birmingham, for the State.

TYSON, Presiding Judge.

The indictment charged Johnny White with the robbery of one Betty Phillips by taking $5.00 and one .25 automatic pistol from her person and by putting her in fear. The jury found the appellant guilty as charged and fixed punishment at ten years imprisonment. The trial court then set sentence in accordance with this verdict.

Betty Phillips testified that on January 12, 1976, around 11:15 p. m., she was working her shift with the Veteran Cab Co. in Birmingham, Alabama. At this time she received a call over her radio to pick up a fare at the emergency entrance of University Hospital in downtown Birmingham, Alabama. When she arrived the appellant came through the emergency door and got in the front seat of her cab. The appellant then told Phillips he wished to go to "1716 33rd Street, North." A few minutes later, the appellant changed the address and informed Phillips that he wished to go to "1716 33rd Avenue." Phillips then asked the appellant if he wanted "to go to ACIPSO," and he replied, "That's right." Phillips testified that when she arrived at the 1700 block of 33rd Avenue, the appellant told her to go to the corner and turn left, which she did. Upon turning, the appellant directed Phillips to 34th Avenue, at which point he told her to pull up in front of a house with a green porch light. Phillips testified that the appellant reached into his pocket while she was writing down the fare as if to get some change. Instead, he (the appellant) pulled out a knife and stabbed Phillips in the side. Phillips then wrestled with the appellant while grabbing underneath the seat of the car for her .25 automatic pistol. The appellant, according to Phillips, took the pistol and directed her to hand over all her money, which she did. At this point, Phillips testified the appellant directed her to drive down 34th Avenue and take a left at 17th Street, which she did. Phillips testified that the appellant then told her to turn right on 32nd Avenue or else he would "blow (her) brains out," to which she replied, "O.K., if I'm gonna die, you're going with me." According to Phillips' testimony, she then "put the gas pedal on the floor" and proceeded through downtown Birmingham, reaching speeds of up to 120 miles per hour. During this time Phillips testified that the appellant placed both the knife and the pistol on the dashboard to get Phillips to slow down. When she would slow down the appellant would grab both the knife and the pistol, at which point she would speed back up again, according to Phillips. Then at the intersection of 17th Street and 11th Avenue North, Phillips' taxi ran into another car and both Phillips and the appellant were knocked unconscious.

The appellant's testimony is somewhat different. The appellant testified that he told Phillips to take him to ACIPSO. Upon arriving at ACIPSO, he told Phillips that it was the wrong address. Then according to the appellant, Phillips said, "Hey, you look like a robber," and then pulled a gun on him (the appellant). The appellant testified that he knocked the pistol out of Phillips' hand and that he then pulled out his knife and wrestled with her until she began speeding through Birmingham.

I

Appellant contends that the State exceeded the proper bounds of impeachment for prior convictions and therefore appellant's motion for a mistrial should have been granted.

During the cross-examination by the State, the following occurred (R. pp. 69-71):

"Q. Mr. White, on August 18, 1970, were you convicted of burglary?

"A. Oh, yes, sir.

"Q. On January 20, 1972, were you convicted of burglary?

"A. I'm thinking. Yes sir.

"Q. And on January 22 of 1976, were you convicted of assault with intent to rape?

"A. Yes, sir. On appeal.

"Q. Did you use a knife on that occasion? Assault with intent to rape?

"A. No.

"MR. CRESPI: Your Honor, I object.

"THE COURT: I sustain objection.

"MR. CRESPI: Your Honor, I would move, at this time, for the Court to declare a mistrial.

"THE COURT: I'll overrule your objection because the witness answered the question before you could get your objection out, and I instruct the witness that when one of the attorneys objects, not to go ahead and answer.

"I do sustain objection, and instruct the jury not to consider that question and answer pertaining to whether or not the assault with intent to ravish or rape was committed with a knife. That's not for any concern or consideration.

"MR. BARBER: That's all the questions I have.

"MR. CRESPI: Your Honor, I would like to renew my motion at this time.

"THE COURT: Overruled."

A witness, or defendant, when testifying in his own behalf, may be questioned on cross-examination for the purpose of attacking his credibility as a witness as to whether he has been convicted of a crime involving moral turpitude. Love v. State, 36 Ala.App. 693, 63 So.2d 285; Code of Alabama 1940, Title 7, §§ 434, 435.

Although evidence of convictions of crimes involving moral turpitude is admissible, the elicitation of details involved in such offenses are not. Ellis v. State, 244 Ala. 79, 11 So.2d 861 (1943); Garvin v. Robertson, 289 Ala. 60, 265 So.2d 602 (1972).

It is well-settled in this State that an objection to a question must be made as soon as the question is asked. Embrey v. State, 283 Ala. 110, 214 So.2d 567. Here the objection came too late. Carpenter v. State, 42 Ala.App. 618, 174 So.2d 336, and therefore was waived. Lucky v. State, 50 Ala.App. 324, 278 So.2d 772.

Because of the curative instructions of the trial judge, we are of the opinion that no error is shown. The appellant's motion for a mistrial was properly overruled. Shadle v. State, 280 Ala. 379, 194 So.2d 538; Retowsky v. State, Ala.Cr.App., 333 So.2d 193; Napier v. State, Ala.Cr.App., 337 So.2d 62.

II

The appellant contends that certain remarks made by the district attorney during closing arguments to the jury were so prejudicial that such could not be cured by proper instructions by the trial court, and therefore appellant's motion for a mistrial should have been sustained.

During the closing argument of the State, the following occurred (R. pp. 73-75):

"MR. BARBER (for the State): You twelve people are taken away from your homes and your jobs and asked to come up here, and you twelve decide what is that worth. What is that stabbing and that taking worth, and all the other things that were mentioned that I see no reason to repeat. What is that worth?

"The defendant, who told you from the stand yesterday, in 1970 was convicted of burglary, in 1972 convicted of . . ..

"MR. CRESPI: May it please the Court, the defendant objects to this line of argument insofar as it seems to depart from what impeachment as to his prior convictions may be probably used for."

The trial court initially overruled the appellant's objection. Then, the court told both parties that he had not heard exactly what the State had said to the jury and asked both counsel to approach the bench. After both the State and the appellant had approached the bench and had a conversation with the court, out of the hearing of the jury, the following occurred (R. pp. 74-75):

"THE COURT: Ladies and gentlemen, as I understand the argument, the objection was based on the context of this portion of the argument that mentioned the prior convictions came immediately after, and I do instruct you not to consider any evidence of prior convictions of crime involving moral turpitude which I am going to instruct you on specifically when I charge you as to the law, but I do instruct you that the sole purpose for it, if any of that type evidence is as going to that person's credibility as a witness, and if there is anything in Mr. Barber's argument which you would construe had he argued it for any other purpose, I instruct you to...