Ex Parte Peagler

516 So. 2d 1369, 1987 WL 741

• Court: Supreme Court of Alabama
• Decided: July 31, 1987
• Docket: 86-567
• Status: Published

Opinions

The question presented on this petition for certiorari is the effect of a prosecutor's asking a defense witness other than the accused whether he had ever been convicted of a felony or a crime involving moral turpitude, where the prosecuting attorney was not prepared, when the witness gave a negative answer, to offer anything other than a FBI "rap sheet" as documentary proof of the conviction.

Petitioner was convicted for possession of cocaine. The state moved to invoke the provisions of Alabama's Habitual Offender Statute, and petitioner was sentenced to a term of three years.

He appealed his conviction to the Court of Criminal Appeals, which affirmed his conviction, without writing an opinion, 502 So.2d 404. Petitioner timely filed an application for rehearing in that court, and, pursuant to the provisions of Rule 39(k), Ala.R.App.P., moved the court to write an opinion setting out facts in regard to several matters. With regard to the specific question we address, petitioner requested that court to add these facts:

"The first witness for the defendant was James Peagler, Jr. Mr. Peagler testified that he was the defendant's . . . brother. James Peagler testified that he was represented by Charles Payne and he stated that he understood what he was doing and that he wanted to testify in the trial of his brother's case. When asked who the cocaine belonged to, James Peagler stated that it was his. He testified that he had the cocaine in a plastic bag. James Peagler stated that he told his brother Michael to ride to the Modern Trailer Park in the van with the other people. He stated that he did not believe that Michael knew anything about a cocaine deal occurring on that night. He stated that he had just told Michael to go and take the folks to the trailer park and that he would be over there in about 15 or 20 minutes. He testified that Michael never had any of the cocaine. He stated that Michael didn't do anything but put his hands on the car when the police arrived and began to arrest them. He stated that Michael had not gotten into his car prior to the time that the police arrested them. He described how he was searched and he described the fact that the police searched his vehicle after he and Michael had been taken away. Mr. James Peagler testified that Michael Peagler was not going to make any money off of the sale of cocaine that occurred that day. On cross-examination, James Peagler was asked if he was the same James Peagler, Jr., who was convicted February 2, 1984, in the Circuit Court of Autauga County for receiving stolen property. He replied, "I don't know nothing about that." Thereupon, Mr. Payne, his attorney, objected to any questions along that line and a lengthy conference was held among the lawyers for Michael Peagler, James Peagler, and the State of Alabama. At this time the defendant's lawyer objected to the question regarding prior convictions of his witness James Peagler, Jr., unless the State could produce a certified copy of a court record indicating that he was convicted. The State replied that they did not have certified copies of the court records of James Peagler, Jr.'s convictions. The defendant's attorney pointed out that the questioning of James Peagler, Jr., in regard to prior convictions in an attempt to impeach him without the necessary court documents to place into evidence to impeach him was highly prejudicial to Michael Peagler's defense. The State of Alabama was allowed to pursue questions in regard to James Peagler, Jr.'s prior convictions."

Petitioner contends that the trial court committed prejudicial error in permitting the state to base its questions to his witness on information contained on a FBI "rap sheet."

The state contends that there is "no case in this jurisdiction [that] requires . . . proof [by properly authenticated documentary evidence] in an instance where a witness, who is being subjected to cross-examination for impeachment purposes, denies commission of a crime involving moral turpitude." The state cites in support of its position Code 1975, § 12-21-162, which reads, as follows:

"12-21-162. Witness convicted of crime.

"(a) No objection must be allowed to the competency of a witness because of his conviction for any crime, except perjury or subornation of perjury.

"(b) As affecting his credibility, a witness may be examined touching his conviction for a crime involving moral turpitude, and his answers may be contradicted by other evidence. (Code 1886, § 2766; Code 1896, §§ 1795, 1796; Code 1907, §§ 4008, 4009; Code 1923, §§ 7722, 7723; Code 1940, T. 7, §§ 434, 435.)"

The state emphasizes the word "may" in the statute and contends that there is no requirement on the state, in this case, to prove, by use of a properly authenticated court record, or a certified copy thereof, that the witness had been previously convicted. We disagree.

In Bezotte v. State, 358 So.2d 521, 525, (Ala.Cr.App. 1978), the Court of Criminal Appeals stated: "Even though a prior conviction involving moral turpitude may be shown upon the cross-examination of a witness, this examination should be subject to the limitation that it be conducted in good faith. See 3 A.L.R.3d 965, and the cases cited therein, concerning lack of documentary proof of a prior felony conviction."

In Gregath v. Bates, 359 So.2d 404 (Ala.Civ.App. 1978), Holmes, J., writing for the court, specifically addressed the same question now pending before us:

"The defendant alleges as error the trial court's refusal to admit testimony which attempted to impeach a witness. Specifically, the defendant was attempting to impeach the testimony of one of the plaintiffs by showing a conviction for a crime involving moral turpitude, i.e., conspiracy to commit gambling.

"The record reveals the plaintiff responded to the defendant's questions and those propounded by the court by stating he didn't know if he had been convicted of that particular offense. Defendant attempted to produce a `rap sheet' which supposedly showed the charge the plaintiff was convicted of. The trial court ruled that this was not the best evidence of such a conviction. We agree.

"When a witness denies that he has been convicted of the crime, it becomes incumbent upon the impeaching party to prove the conviction. This can be done by introducing the original court record of the conviction or a certified or sworn copy. The prior conviction cannot be proven by the offering of oral testimony by the impeaching party. See Headley v. State, 51 Ala. App. 148, 283 So.2d 458 (1973)."

We are of the opinion that Gregath, although it was a civil case, correctly states the law of this jurisdiction; therefore, the judgment of the Court of Criminal Appeals is due to be reversed and the cause remanded to that court for further proceedings consistent with this opinion. See Annot., 3 A.L.R.3d 965 (1965).

REVERSED AND REMANDED.

JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.

HOUSTON, J., dissents.

TORBERT, C.J., and STEAGALL, JJ., not sitting.