Hill v. State

538 So. 2d 436, 1988 Ala. Crim. App. LEXIS 546, 1988 WL 79186
CourtCourt of Criminal Appeals of Alabama
DecidedJune 28, 1988
Docket7 Div. 844
StatusPublished
Cited by4 cases

This text of 538 So. 2d 436 (Hill 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
Hill v. State, 538 So. 2d 436, 1988 Ala. Crim. App. LEXIS 546, 1988 WL 79186 (Ala. Ct. App. 1988).

Opinion

TAYLOR, Judge.

Appellant Levi Hill was convicted of sexual abuse in the second degree, in violation of § 13A-6-67(a)(2), Code of Alabama 1975, a class A misdemeanor. He was sentenced to serve 12 months in the Talladega County Jail. On appeal he presents two issues. Since one requires reversal and is disposi-tive of the case, we will address only it. We do not intend, however, to say the other issue does not also justify reversal.

This conviction was predicated upon evidence that the appellant, who had come home drunk and combative, physically abused several of his children. His 12-year-old daughter testified that he pinched her on her breasts and in the pubic area. Thereafter, when he began beating an older daughter, the sheriffs department was called.

This incident was the culmination of a pattern of conduct of Hill’s coming home intoxicated and abusing and striking various members of the family. Deputy Sheriff Eddie Wilds testified, in pertinent part, as follows:

“Q: Have you ever had occasion to go down there to his residence?
“A: Yes, sir.
“Q: On how many occasions, in your best judgment have you gone to his residence or near there?
“A: Well, for him and Howard Johnson, probably two or three hundred times.”
[The jury was instructed to disregard this answer.]

Deputy Wilds testified that every time he was called to appellant’s house, appellant was under the influence of alcohol and that several times he was in a state of undress. He testified that the Hill family “were usually the ones that called,” and that “that’s usually what we got called on. He would be whipping his kids and his wife.” But that “usually when we would pull up in the yard, it would quit.”

At trial, appellant’s wife and sons would not testify to the facts alleged in the indictment. The wife testified that she did not see the appellant pinch her daughter. She stated that she did tell some things to the sheriff’s female investigator but testified as follows:

“A: I made it all — most of it up. I really did.
“Q: So you are saying that you did say it?
“A: I was in such a state of mind and we had been arguing and fussing and I [437]*437wanted to hurt him — (witness crying)”

The older daughter testified to his beating her but testified that she did not see her father do anything to her younger sister.

Because only the 12-year-old girl would give testimony concerning her father having pinched her, the state proceeded to attempt to make out its case by “impeachment” of the other witnesses. The jury was, of course, cautioned to consider these quotes from previous written statements only as impeachment testimony, although it is clear that the state’s evidence forms a pattern of proof of a case made out more by “impeachment testimony” than by direct testimony. The state presented direct affirmative testimony of the pinching by the testimony of the alleged victim, Barbara Hill. The remainder of the state’s case consisted of statements by the older daughter, Donna Hill and the mother, Dorothy Hill, which they said they could not remember; statements by the sons, Bobby Hill and Dewayne Hill, which they said they could not remember; and a straight denial by the father, Levi Hill.

By the device of asking questions for “impeachment,” the state showed that 11-year-old Bobby Hill had given a statement to an investigator. He told the investigator that when he was about 5 or 6 years old, he was in the woods with the appellant and the appellant tried to make him pull off his clothes, and “then he tried to stick his pecker up my tail.” This was vehemently denied at trial by Bobby Hill. •

A sheriff’s investigator, Barbara Dis-pain, testified that appellant Levi Hill made a statement to her in which he said, in part:

“Every two or three months I pick at Bobby. I tell him I will ream him in your butt hole. I touch him on the back, 4th or 5th disc up on the backbone, about three or five inches above the butt. I touch him with by finger. Sometimes I hold him and pull his britches down. The last time I pulled his pants down was three or four months ago. This is Bobby Hill.”

Our Supreme Court has recently provided us with considerable guidance in the area of what prior bad acts may be proved against an accused person in order to prove the charge in the instant case. In Anonymous v. State, 507 So.2d 972 (Ala.1987), at 973-74, the Supreme Court stated:

“The general evidentiary principle, long adhered to in Alabama, which must be applied in this case may be stated as follows: In a prosecution for one offense, evidence of collateral crimes or acts is generally inadmissible to prove the guilt of the accused. See Ex parte Cofer, 440 So.2d 1121 (Ala.1983); Ex parte Killough, 438 So.2d 333 (Ala.1983); Brasher v. State, 249 Ala. 96, 30 So.2d 31 (1947); Haley v. State, 63 Ala. 89 (1879); Ingram v. State, 39 Ala. 247 (1864). In fact, it has been stated that such evidence is prima facie inadmissible. See Cofer, supra; Brasher, supra; Allen v. State, 380 So.2d 313 (Ala.Crim.App.1979), cert. denied, 380 So.2d 341 (Ala.1980).
“As was explained in Cofer:
“ ‘This is a general exclusionary rule which prevents the introduction of [collateral] criminal acts for the sole purpose of suggesting that the accused is more likely to be guilty of the crime in question. This rule is generally applicable whether the other crime was committed before or after the one for which the defendant is presently being tried.
“ ‘ “This exclusionary rule is simply an application of the character rule which forbids the state to prove the accused’s bad character by particular deeds. The basis for the rule lies in the belief that the prejudicial effect of [collateral] crimes will far outweigh any probative value that might be gained from them. Most agree that such evidence of [collateral] crimes has almost an irreversible impact upon the minds of the jurors.” ’
“Cofer, 440 So.2d at 1123 (quoting C. Gamble, McElroy’s Alabama Evidence § 69.01(1) (3d ed. 1977) (hereinafter cited as “McElroy’s”).
[438]*438“The rationale for this general exclusionary rule was well stated by one commentator:
“ ‘This exclusionary rule has long been the law in Alabama and every other American jurisdiction and is “[a] concomitant of the presumption of innocence,” which requires that “a defendant ... be tried for what he did, not for who he is.”
“ ‘Evidence that tends to show guilt of another offense is not excluded because it is irrelevant. Indeed, because “a man of bad character is more likely to commit a crime than one not [of bad character],” evidence of collateral crimes or acts is frequently highly relevant. Nonetheless, such evidence is excluded because of its potentially prejudicial impact.

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Bluebook (online)
538 So. 2d 436, 1988 Ala. Crim. App. LEXIS 546, 1988 WL 79186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-state-alacrimapp-1988.