Crowell v. City of Montgomery

581 So. 2d 1130, 1990 Ala. Crim. App. LEXIS 122, 1990 WL 57122
CourtCourt of Criminal Appeals of Alabama
DecidedMarch 16, 1990
Docket3 Div. 263
StatusPublished
Cited by3 cases

This text of 581 So. 2d 1130 (Crowell v. City of Montgomery) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crowell v. City of Montgomery, 581 So. 2d 1130, 1990 Ala. Crim. App. LEXIS 122, 1990 WL 57122 (Ala. Ct. App. 1990).

Opinion

PATTERSON, Judge.

Appellant, Denise Oliver Crowell, was charged with driving under the influence of alcohol, speeding, and improper lane usage, in violation of several ordinances of the City of Montgomery, Alabama. Appellant was found guilty on all charges in the municipal court. She appealed to the circuit court, where she was again found guilty on all charges. For her driving under the influence conviction, she was sentenced to a suspended six-month sentence with supervised probation; was ordered to serve 80 hours of community service, pay $20 to the Crime Victim’s Compensation Fund, and pay court costs; and was fined $350. For the remaining two convictions, [1131]*1131appellant received $50 fines and was ordered to pay court costs. Appellant raises two issues.

I

Appellant contends that the trial court erred in ruling that she could not testify as to her condition of intoxication at the time of her arrest.

The record reveals the following:

“Q. MR. KIRK [Defense Counsel]: Now, when you left there at 6:00 o’clock, Ms. Crowell, I want you to tell the members of the jury, did you feel in any way that your legs or your arms or your mental processes or your physical abilities were affected in any way by what you had drunk over that period of time?
“A. [APPELLANT] No.
“MR. GUY [Prosecutor]: Your Honor, Pm going to object to that. It’s self-serving.
“THE COURT: I’m going to sustain the objection.
“MR. KIRK: Your Honor, forgive me, are you saying I do not have the right to inquire as to her opinion?
“THE COURT: In the form you asked it, I’m going to sustain the objection.
“Q. (BY MR. KIRK:) I ask you, please, ma’am, based on what you had drunk, did you in any way feel affected physically or mentally?
“MR. GUY: Your Honor, again I object.
“THE COURT: I’m going to sustain the objection.
“Q. Ma’am, did you have an opinion, based on what you had drunk and your experience in life, were you under the influence?
“MR. GUY: I object to that, Your Honor.
“THE COURT: I’m going to sustain the objection, Mr. Kirk. That’s going to be an issue for this jury to determine in this case, based on the two of you giving the evidence before them.
“MR. KIRK: Your Honor, if I understand you, the Court is saying I have no right to ask her opinion of her own condition?
“THE COURT: That’s not what you asked, what her condition was. But I’ve sustained Mr. Guy’s objection.
“Q. (BY MR. KIRK:) Ms. Crowell, I need to ask you please, ma’am, at the time you left there did you feel like your — did you have an opinion as to whether you were physically impaired in your movement?
“MR. GUY: Again I object.
“THE COURT: I’m going to sustain the objection, Mr. Kirk. You have brought out in evidence — Go ahead and ask her what she did next. I think that’s the proper line of questioning. I’m going to sustain his objection and ask you not to ask it again. I’ve ruled on it about three times.”

The trial court then explained, outside the jury’s presence, that it would not allow appellant to give any testimony about whether or not she was impaired or intoxicated because the issues of impairment and intoxication are for the jury and, moreover, any testimony from appellant, on these points, would be self-serving.

We know of no rule of law that would prohibit a defendant from testifying about his or her state of intoxication and accompanying characteristics. The city argues that any such testimony would constitute an impermissible “self-serving declaration.” Section 242.02 in C. Gamble, McEl-roy’s Alabama Evidence (3d ed. 1977), is cited as authority for this position. However, as recognized in the cited section, as well as by the city, the rules pertaining to “self-serving declarations” apply only to extrajudicial declarations.

The city also contends that any such testimony by a defendant goes to the ultimate fact in issue to be decided by the trier of fact. This argument has been rejected in regard to witnesses other than a defendant. See, e.g., Sanders v. City of Birmingham, 542 So.2d 325, 330 (Ala.Cr.App.1988); Grimes v. State, 491 So.2d 1053, 1055 (Ala.Cr.App.1986); Grimes v. State, 488 So.2d 8 (Ala.Cr.App.1986). In fact, the arresting officer testified that, in [1132]*1132his opinion, appellant was under the influence of alcohol to the point that she was an impaired driver. We know of no reason to exclude a defendant from giving his or her opinion. Opinion testimony as to intoxication or sobriety is not restricted to expert testimony. Sanders, 542 So.2d at 329; Patterson v. State, 518 So.2d 809, 813 (Ala.Cr.App.1987). A nonexpert witness who lacks medical training may testify as to the general nature of his or her own physical condition. 31A Am. Jur.2d, Expert and Opinion Evidence § 201 (1989). See also C. Gamble, supra, at § 128.10(4).

In State v. Persell, 468 S.W.2d 719, 721 (Mo.App.1971), the trial court refused to allow the appellant to give his opinion as to whether he was under the influence of alcohol at the time in question and to give evidence of his safe operation of his vehicle. After recognizing the value and relevancy of such testimony, the reviewing court held that the refusal to allow the testimony was prejudicial and, thus, that reversal was warranted. Id. Accord, State v. Ellsworth, 468 S.W.2d 722 (Mo.App.1971). See also Sanderson v. Frawley, 273 Wis. 459, 78 N.W.2d 740, 743 (1956) (wherein the court held that, in a civil case wherein the defendant driver was being sued by a passenger, the defendant’s testimony that the effect of his consumption of beer was noticeable in his talk was permissible as “a layman’s effort to describe his perceptible condition, and its probative value was for the jury to assess”).

Accordingly, we find that the trial court’s refusal to allow appellant to testify to her alleged state of sobriety and accompanying characteristics unconstitutionally infringed on her right to testify. “[R]es-trictions of a defendant’s right to testify may not be arbitrary_” Rock v. Arkansas, 483 U.S. 44, 55-56, 107 S.Ct. 2704, 2711, 97 L.Ed.2d 37 (1987).

II

The evidence was given, in entirety, on the first day of trial. Prior to the closing arguments, which were to be given at the beginning of the second day of proceedings, the trial court revealed, to the parties, that a juror had informed the trial court that, on her way to court that morning, she had driven down those portions of Atlanta Highway and Madison Avenue that appellant was observed driving on when she was allegedly committing the charged offenses.

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Related

Ex Parte Potter
661 So. 2d 260 (Supreme Court of Alabama, 1994)
Potter v. State
661 So. 2d 255 (Court of Criminal Appeals of Alabama, 1993)

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Bluebook (online)
581 So. 2d 1130, 1990 Ala. Crim. App. LEXIS 122, 1990 WL 57122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crowell-v-city-of-montgomery-alacrimapp-1990.