George v. State

598 So. 2d 1050, 1992 Ala. Crim. App. LEXIS 233, 1992 WL 92554
CourtCourt of Criminal Appeals of Alabama
DecidedApril 17, 1992
DocketCR-90-1499
StatusPublished
Cited by2 cases

This text of 598 So. 2d 1050 (George v. State) 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
George v. State, 598 So. 2d 1050, 1992 Ala. Crim. App. LEXIS 233, 1992 WL 92554 (Ala. Ct. App. 1992).

Opinion

JAMES H. FAULKNER, Retired Justice.

Cleveland Ed George was indicted for the offense of unlawful distribution of a controlled substance in violation of § 13A-12-211, Code of Alabama 1975. The jury found George guilty as charged in the indictment, and he was sentenced to two years in the penitentiary plus an additional five years because the sale of a controlled substance occurred within three miles of a school. See § 13A-12-250. Four issues are raised on appeal.

I

George contends that the trial court erred by denying his motion in limine, which sought to prevent his prior misdemeanor conviction of attempted sexual abuse from being introduced for impeachment purposes.

“The denial of a motion in limine cannot in and of itself rise to the level of reversible error.” White v. State, 527 So.2d 1349, 1350 (Ala.Cr.App.1988).

“[A]n appellant who suffers an adverse ruling on a motion to exclude evidence ..., made in limine, preserves this adverse ruling for post-judgment and appellate review only if he objects to the introduction of the proffered evidence or other matters and assigns specific grounds therefor at the time of trial, unless he has obtained express acquiescence of the trial judge that such subsequent objection to evidence proffered at trial and assignment of grounds therefor are not necessary.”

Liberty National Life Ins. Co. v. Beasley, 466 So.2d 935, 936 (Ala.1985).

George failed to object at trial to the introduction of the evidence of his prior conviction and makes no mention of an express acquiescence of the trial judge that subsequent objections to the proffered evidence were unnecessary. Hence, George has waived this issue.

Even if this issue had been properly preserved, we note that the trial court properly denied George’s motion in limine because the underlying offense of the prior conviction was a crime of moral turpitude which could properly have been used to impeach George. See Raines v. State, 455 So.2d 967 (Ala.Cr.App.1984) (sexual crimes are crimes of moral turpitude) and Stahlman v. Griffith, 456 So.2d 287 (Ala.1984) (the [1052]*1052moral baseness of the act is not lessened by the fact that the act was attempted as opposed to completed).

II

George contends that comments in the prosecutor’s closing argument alluding to the identity of an informant should have been excluded, because no evidence of the informant's identity was brought forth during the trial.

During closing argument by the prosecutor, the following occurred:

“We have had mama come in and testify. Mama has not been in here, and yet, for some reason she knew enough about what was going on from some source— and you can make up your mind from what source — to go and ask that man ‘Have you seen Cheryl Tucker lately?’ Where did she get that from? She knew who was living over there. And she knew that he knew who was there and she knew who put that undercover officer onto her son.
“MR. SHOTTS [defense counsel]: I’m going to object to that. That is absolutely not in evidence.
“MR. MAHON [prosecutor]: It is a clear inference from the testimony in this case. “THE COURT: I have let both of you run off. You have two more minutes, Mr. Mahon.
[[Image here]]
“[Mr. Mahon] Now, I asked who the informant was and he objected. He doesn’t want you to know. But you know who the informant was and so does mama. Everybody knows. I asked have you seen her lately — object. She turned him in.
“MR. SHOTTS: Your Honor, I object to that. It’s not in evidence.
“THE COURT: What is that?
“MR. SHOTTS: That she turned him in. “THE COURT: That’s Mr. Mahon talking. I keep telling the jury what both of y’all say is just talk.”

Because the trial court did not rule on defense counsel’s objections to the above-quoted portion of the prosecutor’s closing argument, this issue has not been properly preserved for appellate review. “Review on appeal is limited to matters on which rulings are invoked at the trial level.” Cross v. State, 536 So.2d 155, 158 (Ala.Cr.App.1988).

We note that even if this issue had been properly preserved, the prosecutor’s comment as to the identity of the informant was a permissible inference from the evidence presented, and a curative instruction was given by the trial court. Moore v. State, 457 So.2d 981 (Ala.Cr.App.1984) cert. denied, 470 U.S. 1058, 105 S.Ct. 1757, 84 L.Ed.2d 820 (1985).

Ill

George contends that the prosecutor should not have been allowed to cross-examine George’s mother because the testimony was hearsay and it was prejudicial, inflammatory, collateral, and immaterial.

During defense counsel’s direct examination of George’s mother, Mrs. George testified that she did not attend the proceedings when her son pleaded guilty to attempted sexual abuse. During cross-examination of Mrs. George, the prosecutor asked her what she had said to Officer Jeff Shelton, the undercover officer who had purchased the marijuana from her son, “yesterday in the coffee room of the courthouse.”

Defense counsel objected to this question, and the court removed the jury from the courtroom. The prosecutor then resumed his cross-examination of Mrs. George, outside the jury’s presence, and the following occurred:

“Q. [By Mr. Mahon, the prosecutor] Do you remember what you said?
“A. I asked him if he had seen Cheryl Tucker lately or when was the last time that he had seen her.
“Q. What did he say?
“A. He said he hadn’t seen her in some time.
“Q. What did you say?
“A. I said well, when he saw her again to give her my regards.
“Q. Then what did he say? Didn’t he at that point ask you who you were?
[1053]*1053“A. Yes. And I told him I was Carolyn George.
“Q. Then what did you say?
“A. He asked me if I was his sister or his mother or who I was, and I told him I was Eddie’s mother.
“Q. Then what did you say?
“A. I don’t remember.
“Q. Something about every dog having his day?
“A. I don’t remember. No, sir, I did not say that.
“Q. What was it that you did say?
“A. I told him that he was trying to ruin my son’s life and what goes around comes around.
“MR. MAHON: That’s what I want to ask her about.
“THE COURT: Why did you say anything to a witness in here?
“A. I thought that he was through with the court. I just — I guess my motherly instincts — I thought he was through with his testimony.
“THE COURT: Even if he was through, you didn’t have a right to tacitly threaten him. That’s what you were doing.

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Related

Barney v. State
42 So. 3d 170 (Court of Criminal Appeals of Alabama, 2009)
Kent v. State
739 So. 2d 1063 (Supreme Court of Alabama, 1999)

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Bluebook (online)
598 So. 2d 1050, 1992 Ala. Crim. App. LEXIS 233, 1992 WL 92554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/george-v-state-alacrimapp-1992.