Ware v. State

565 So. 2d 1173, 1990 Ala. Crim. App. LEXIS 57, 1990 WL 19801
CourtCourt of Criminal Appeals of Alabama
DecidedFebruary 2, 1990
Docket6 Div. 935
StatusPublished
Cited by1 cases

This text of 565 So. 2d 1173 (Ware 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
Ware v. State, 565 So. 2d 1173, 1990 Ala. Crim. App. LEXIS 57, 1990 WL 19801 (Ala. Ct. App. 1990).

Opinion

BOWEN, Judge.

Michael Ware was convicted of murder for the shooting death of James Earl Davis. He was sentenced to 41 years in the penitentiary and was ordered to pay $10,000 to the Crime Victims Compensation Fund. On this appeal of that conviction, he raises three issues.

I

First, he claims that the trial court erroneously restricted his right to cross-examine State’s witness Develina Coleman, an eyewitness to the shooting. The record shows the following occurred:

“CROSS-EXAMINATION
“BY MR. APPELL [defense counsel]:
“Q. How old are you?
“A. Twenty-one.
“Q. And how old was James Davis?
“A. Forty-four.
“Q. You met him when you were 16
years old?
“A. About 15.
“Q. And he was 40?
“A. Yes.
“Q. You were friends with him for that time frame?
“A. Right.
“Q. You partied together?
“THE COURT: Wait a minute. I don’t want any talking in this courtroom. (Jury out)
“THE COURT: What difference does it make how old she was and how old is this man?
“MR. APPELL: First of all, for the record, there was no objection to that question.
“THE COURT: I don’t care whether there was an objection or not. I agree with you. The District Attorney at that point was derelict. But I won’t [1175]*1175let you lambast this lady. That’s what it seems to me you were doing. What relevance does it make how old she is and how old the man was? Tell me.
“MR: APPELL: I will try to show that this woman was doing narcotics and I will try to show that this woman was under the domination of this man for a long period of time and he had influenced her.
“THE COURT: If she was doing narcotics, it wouldn’t make any difference whether he influenced her or not. I gather you are going to try to test her faculties. I’m not a nut. I’ve got sense enough to know what you are doing. What you are trying to do is show that a 16-year-old woman was going with a forty-year-old man. That’s a question for another day and another time. But I won’t have you lambast her character in that vein. You can lambast her as to truth and veracity, but how loose she lived, I won’t have you drag her through the mud.
“MR. APPELL: We take exception.
“THE COURT: You can have an exception. But don’t you do that. Don’t drag her through the mud on something that has no probative value in this courtroom. The issue is about whether or not a murder took place and I will let you question her as to anything that would reflect on her ability to tell the truth or to know what she says she saw and to test her mental faculties. But whether she lives with a man at a young age, that’s a question that should have been decided by the Juvenile Court at that time. Whether she lived a loose life, that is a question to be decided by somebody else, not me at this hearing. I will not let you come in here and drag her through the mud. You might do it elsewhere, but you won’t do it here.
“MR. APPELL: I only asked the question in response to the question of the prosecuting attorney of how old are you. I have a right to ask that question. I have a right to let the jury know how long was their relationship, how long have they known each other.
“THE COURT: The fact that she’s known him — She’s known her preacher 30 years, maybe. What you are trying to do — And I’m not crazy — Is show that this lady at 16 years of age was running around with a man who was greater in age than she was. That’s what you are trying to do. I’m not crazy. Don’t ask me to be ignorant. The jury is out of here and I’m telling you that now. I’ve been a lawyer. I will let you test her mental faculties. I will let you find out whether or not they were as you say doing drugs. That has some relevance in this case, but whether or not — What kind of life she lives — And I’m going to tell you, you ought to protect your witnesses.
“MR. STOKESBERRY [deputy district attorney]:
I was about to object, Your Honor. I believe everything that he asked was in evidence.
“THE COURT: Is it in evidence that the friendship that she had cultivated with this man since she was 16 years of age, was that in evidence?
“MR. STOKESBERRY: The only thing in evidence was the fact of the period of time that she knew him, her age, and his age. Those facts were present and I suppose he could have argued them if he wanted to.
“THE COURT: But that isn’t what he was doing, Mr. Stokesberry. This man is trying to show that this lady and this man were socializing and doing drugs. I will let you establish, if that be the case, that they were doing drugs, as you used the term. That’s relevant because if she was on drugs then it might have impaired or impeded her ability to know what she saw. But how she lives, and I’m not saying if she’s a concubine or whatever, that has nothing to do with this trial. You are not going to drag witnesses with me sitting up here.
“MR. STOKESBERRY: I believe she said they were friends.
[1176]*1176“THE COURT: I understand that. Friends are quote, unquote.
“I take it he was your boyfriend, wasn’t he, madam?
“A. No.
“THE COURT: Did you have a relationship with this man?
“A. No.
“MR. APPELL: I will abide by the Court’s ruling.”

“It has been definitely settled by an overwhelming array of authorities that an adversary has the privilege to test the interest, bias, or partiality of one who testifies as a witness against him.” Melvin v. State, 32 Ala.App. 10, 14, 21 So.2d 277, 279 (1944), cert. denied, 246 Ala. 493, 21 So.2d 282 (1945). The fact that Ms. Coleman had been “friends with,” or had “partied” with the victim was relevant to show her partiality toward the victim and her support for the State in a prosecution of the person charged with his murder. The trial court’s action in cutting off cross-examination following the question whether the witness and the victim had “partied together” was error. See Vaughan v. State, 201 Ala. 472, 475, 78 So. 378, 381 (1918) (wherein the court held that questioning witness about whether he drank and played cards with accused was “proper on cross-examination as tending to show the relation existing between the parties ... as having some bearing before the jury on the question of bias”) “As affecting credibility, it is permissible, on cross-examination, to inquire of a witness his relation to the parties involved.” Williams v. State, 44 Ala.App. 503, 505, 214 So.2d 712, 714 (1968).

Moreover, had defense counsel asked whether Ms.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Dyson v. State
591 So. 2d 559 (Court of Criminal Appeals of Alabama, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
565 So. 2d 1173, 1990 Ala. Crim. App. LEXIS 57, 1990 WL 19801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ware-v-state-alacrimapp-1990.