Vrocher v. State

813 So. 2d 796, 2000 Ala. LEXIS 368, 2000 WL 1273681
CourtSupreme Court of Alabama
DecidedSeptember 8, 2000
Docket1990784
StatusPublished
Cited by1 cases

This text of 813 So. 2d 796 (Vrocher v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vrocher v. State, 813 So. 2d 796, 2000 Ala. LEXIS 368, 2000 WL 1273681 (Ala. 2000).

Opinion

MADDOX, Justice.

A jury convicted Edward C. Vrocher of third-degree burglary and second-degree sexual assault, and the trial judge sentenced him to 10 years in prison for the burglary conviction and to one year in prison for the sexual-assault conviction. However, the judge suspended 7 years of the 10-year sentence and ordered Vrocher to serve three years in prison on the burglary conviction. The Court of Criminal Appeals, on December 17, 1999, affirmed the convictions and sentences, with an unpublished memorandum. Vrocher v. State, (No. CR-98-1048) 796 So.2d 448 (Ala. Crim.App.1999) (table). Vrocher petitioned this Court for certiorari review, which we granted. For the reasons discussed below, we reverse and remand for further proceedings in the Court of Criminal Appeals.

Facts

Vrocher and his family lived next door to T.M. and her children. Her younger son, Z.D., was 10 years old when T.M. and her family moved into the neighborhood. Z.D. testified that Vrocher touched him on his genitalia once in the Vrocher home and that Vrocher would regularly come to Z.D.’s window at night and talk to Z.D. through the open window. Z.D. also testified that Vrocher touched him on his geni[797]*797talia one night through the open window of Z.D.’s bedroom. That night, T.M. heard noise from her son’s room and discovered Vrocher with his hands under her son’s sheets. Vrocher testified that he had never touched Z.D. on his genitalia and that, on the night T.M. saw him reaching through the window of her son’s room, he was rubbing Z.D. on his stomach in an effort to wake him up.

Discussion

The Court of Criminal Appeals held in its unpublished memorandum that Vrocher had not preserved for appellate review his argument that the trial judge erred in posing certain questions to Vrocher when he was on the witness stand. We granted certiorari review to consider that holding.

The record indicates the following colloquy occurred at the conclusion of the prosecutor’s cross-examination of Vrocher:

“Q. [By Mr. Hardesty, the prosecutor] And your actions toward the little boy were something you couldn’t help, weren’t they?
“A. [By Vrocher] Were my actions toward him something—
“Q. Going over at midnight to rub his stomach is something you just couldn’t help, wasn’t it, Mr. Vrocher?
“A. I didn’t go over to rub his stomach.
“MR. HARDESTY: Thank you. That’s all.
“THE COURT: But you rubbed his stomach when you got there, sir?
“A. There’s a difference in those two statements.
“THE COURT: Did you rub his stomach when you got there, sir?
“A. In an attempt to wake him, yes.
“THE COURT: If someone came to your child’s window between twelve midnight and one a.m. and stuck their arms through the window and proceeded to rub your child, would you consider that to be appropriate conduct?
“A. If someone — Would I consider that to be appropriate conduct?
“THE COURT: Yes, sir.
“A. No.
“THE COURT: And if someone kissed your son’s stomach, would you consider that to be appropriate conduct?
“A. No.
“THE COURT: And if your son [N.] allowed another man to call him daddy [sic]—
“A. Now, you said if anybody did that. If I did it, it would be different.
“THE COURT: It would be different.
“A. If I — You asked me if I — if anybody rubbed [N.]’s stomach. If I rubbed [N.]’s stomach I don’t think that would be inappropriate.
“THE COURT: No, no, that’s not what I said.
“A. You said if anybody.
“THE COURT: If someone other—
“A. You implied if it was somebody besides me, but if it was me and I was his daddy, it would be different.
“THE COURT: But you’re not [Z.D.’s] daddy, are you?
“A. Am I his biological father? No.
“THE COURT: But you let him call you daddy?
“A. During that period of time I was a father figure to him and that was something that was his choice.
“THE COURT: And if your son [N.] called another man daddy, would you consider that to be appropriate?
“A. If my son [N.] were calling someone else daddy I would think that I wasn’t doing my job.
[798]*798“THE COURT: But you were doing your job by letting [Z.D.] call you daddy?
“A. I didn’t say it was my job. We discussed — He said he wanted to— “THE COURT: Mr. Wilson, do you have any more questions for your client?
“MR. WILSON [defense counsel]: No, sir, but I would like to approach ' the bench, judge.
“THE COURT: All right. You may step down.”

(R.T. at 402-05.)

At that point in the proceedings, the trial judge dismissed the jury, and the following exchange took place:

“THE COURT: All right. Let the record reflect that the jury has gone out. Mr. Wilson has something he wants to put on it.
“MR. WILSON: Yes, sir. Your Honor, I would enter an objection to the Court interjecting questions to the witness that I view to be taking an adversarial side in the case. It would be reflective of his comments or amount to a comment on the evidence. And by his questions expressing doubt in his questions to this witness, we think it’s prejudicial to the defendant, the Court inserting itself into the question-and-answer period and by the questions that were asked and the argumentative nature with the witness in which they were asked. And I would ask for the record that the Court enter a mistrial.
“THE COURT: All right. First of all, your motion for a mistrial is denied. Secondly, I would take strident issue with your characterization as argumentative because I was very careful not to raise my voice and to ask those questions in a conversational tone. Secondly, Rule 614 of the Alabama Rules of Evidence states that the Court may interrogate witnesses, not question, interrogate whether they were called by the Court or by a party.
“This issue has come up before, the last time in the case of [Kmart Corp. v. Kyles, 723 So.2d 572 (Ala.1998)], which affirmed not only the vitality of the rule, but my right to ask questions. I, sir, am not a robot and I am not an advocate. My purpose is to seek the truth. And as long as I don’t take sides and as long as I do not become argumentative, under the law I have an absolute right to ask questions.
“I have twice told this jury that they are not to infer from anything I say or anything I do that I have an opinion as to the facts. If, however, you would like me to tell them a third time I will be more than happy to do so.

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Related

Vrocher v. State
813 So. 2d 799 (Court of Criminal Appeals of Alabama, 2001)

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Bluebook (online)
813 So. 2d 796, 2000 Ala. LEXIS 368, 2000 WL 1273681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vrocher-v-state-ala-2000.