Ward v. State

653 So. 2d 1003, 1994 Ala. Crim. App. LEXIS 134, 1994 WL 128971
Court of Criminal Appeals of Alabama·Decided April 15, 1994·No. CR-92-1644·Published·Cited by 1 cases

Opinion

MONTIEL, Judge.

The appellants, James Ward and Jacklyn Ward, were convicted of rape in the first degree, § 13A-6-61, Code of Alabama 1975. Jacklyn Ward was convicted under a theory of aiding and abetting the rape. § 13A-2-23, Code of Alabama 1975. The trial court sentenced each of the Wards to 30 years in prison.

The evidence in this case tended to show the following: James Ward and Jacklyn Ward had been married 13 years at the time of the trial of this case. V.T., who was 17 at the time of trial, is Jaeklyn’s daughter from a previous marriage. V.T. testified that from the time she was four years old, her stepfather, James, had been sexually abusing her. She related for the jury the most recent incident of abuse, which she says occurred in late December 1989. According to V.T., James came into her bedroom and told her to [1004] go into his bedroom, where Jaeklyn was already in the bed. V.T. went into her parents’ bedroom. James then told V.T. to take off her clothes. V.T. testified that she “fussed about it,” but she said that James told her if she did not take off her clothes, he would get his belt. V.T. said she took off her clothes, and that then James told her to lie down on the bed. V.T. said that she did as she was told, and that James began to have sex with her. V.T. said Jaeklyn was lying next to her at this time. When James was about to ejaculate, V.T. testified, “he pulled out and went into Jackie.” James and Jacklyn then had sexual intercourse with V.T. lying in the bed next to them. V.T. testified that similar incidents had occurred in the past, sometimes as frequently as two or three times a week. On prior occasions, when she refused to have sex with James, V.T. testified, Jaeklyn would tell her to quit fussing and fighting James.

Jaeklyn and James Ward both testified at trial and denied the allegations of rape as alleged by V.T. Jaeklyn testified that she had called the police after an argument with James, and had told them that she wanted to go to Penelope House, which apparently is a shelter for abused women. Jaeklyn testified that when she found out she could not be accepted at Penelope House unless there had been some abuse, she made up the story about James molesting V.T. and told it to police. In addition, Jaeklyn testified that she told V.T. to say that James had sexually assaulted her once or twice a week for the two months before the conversation with police. Jaeklyn also testified that she did not understand the consequences of her allegation.

I

The Wards’ first contention is that the trial court erred by allowing the State to impeach Jaeklyn on a collateral matter. According to the record, Jaeklyn testified on direct examination that she had been fired from her job as a nursing assistant because of her arrest in this case. On cross-examination, she reiterated that she had lost her job because of the allegations against her and she denied that she was fired because she was soliciting her co-workers to have sex with her husband.

On rebuttal, the State called Jacklyn’s supervisor at the nursing home. The supervisor testified that Jaeklyn had been terminated for soliciting other employees for sexual favors for her husband. The supervisor also said that Jaeklyn had been notified of the reason for her termination. The State also called a former co-worker of Jacklyn’s, who testified that Jaeklyn asked her if she wanted extra money and asked would she have sex with her husband.

That rebuttal testimony, the Wards argue, was highly prejudicial impeachment testimony regarding an immaterial collateral matter and, therefore, should not have been admitted. The Wards correctly state that a witness may not be impeached on a collateral matter. Brundage v. State, 585 So.2d 238 (Ala.Crim.App.1991). “A fact is ‘collateral’ if it is ‘admissible neither upon an issue under the pleadings of the case nor for the purpose of impeaching the witness’ credibility in some means other than inconsistency.’” Brundage v. State, 585 So.2d at 240 (quoting C. Gamble, McElroy’s Alabama Evidence § 156.01(3) (4th ed. 1991)).

This case hinged on whether the jury believed Jacklyn’s and James’s testimony that V.T. had not been raped, or whether it was going to believe V.T.’s testimony that she had been raped. In Mims v. State, 500 So.2d 100, 104 (Ala.Crim.App.1986), a mother was convicted of rape for forcing her daughter to engage in sex with the mother’s boyfriend. As in this case, the victim in Mims testified that her mother would sit and watch the rapes as they occurred.

In Mims, the appellant objected to extrinsic evidence from the State’s rebuttal witness regarding a “pay off” the appellant had received in return for her noncooperation in the prosecution of two young men who had allegedly raped her daughter in a separate incident — an issue the appellant deemed immaterial and collateral to her case. This court held that the testimony was admissible for the purpose of impeaching the appellant, who had in turn sought to impeach the testimony of her daughter, the victim.

[1005] In this case, Jacklyn testified that her daughter’s testimony during the trial was untrue. Evidence that Jacklyn attempted to solicit women she worked with to have sex with her husband would be relevant, material, and probative to the jury’s determination of whether Jacklyn or her daughter, V.T., was telling the truth as to the charges against Jacklyn in this case, that is, whether she allowed her husband to have sex with V.T. The extrinsic evidence regarding the circumstances surrounding Jacklyn’s firing was admissible to impeach Jacklyn, who had tried to impeach her daughter, V.T., the victim in this case.

Furthermore, Jacklyn testified that she and her husband, James, had a “normal sex life,” and because of his health problems, they would have sex only once or twice a month. The Alabama Supreme Court has held:

“To affect the general credit of the witness the contradictory statements must relate to matter which is material to the issue on trial and not to those incidental or collateral facts which are remote in their application to the offense on trial and which would improperly extend the issues or involve the trial of other offenses which have no legitimate bearing on the particular offense under investigation.
“But there is an exception to this rule, that if it has relation to the credibility of the witness in the particular case it is admissible, although it be in respect to collateral or immaterial matter.”

Noble v. State, 253 Ala. 519, 521-22, 45 So.2d 857, 859 (1950) (emphasis in the original). In this particular case, evidence that Jacklyn tried to get her co-workers to have sex with her husband, and thus that James and Jacklyn did not have a “normal sex life,” would be relative, material, and probative. Furthermore, immediately before and after the challenged testimony, the trial court gave a limiting instruction to the jury, telling jurors that they were to consider that testimony only “to judge the correctness or incorrectness of certain statements already made by the defendant, Ms. Ward.”

For the reasons set forth above, we hold that the trial court did not err in allowing the testimony of Jacklyn’s former supervisor and co-worker.

II

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Ward v. State, 653 So. 2d 1003, 1994 Ala. Crim. App. LEXIS 134, 1994 WL 128971 (Ala. Ct. App. 1994).

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