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Smith v. State Farm Mutual Automobile Insurance Co.1/15/1999
ody must always be shown. Ex parte Williams, 548 So. 2d 518 (Ala. 1989). I recognize that the trial court is vested with judicial discretion in evaluating the sufficiency of a predicate for admission of evidence and that the trial court's determination in that regard is not reversible except for an abuse of discretion. However, where the proper predicate is not established, the admission of blood- alcohol test results is reversible error. Whetstone v. State, 407 So. 2d 854 (Ala.Crim.App. 1981). Given this Court's decision in Kent, and the factually deficient testimony of Dr. Embry, I would hold the blood-alcohol evidence inadmissible for want of the proper predicate. Accordingly, I consider the admission of the blood- alcohol evidence to warrant reversal.
II. Juror Affidavits
Next, I consider whether the trial court erred in failing to consider the juror affidavits proffered by Danny Smith. State Farm contends that the new-trial order was properly set aside on the basis of the juror affidavits it presented to the trial court. Moreover, State Farm asserts that the trial court erred in considering Danny Smith's juror affidavits because, it argues, they were intended to impeach the jury's verdict and, therefore, were inadmissible under Rule 606(b), Ala.R.Evid. However, Smith contends that the juror affidavits he presented were not submitted for the impermissible purpose of impeaching the jury's verdict and, therefore, that the trial court should have considered them. Again, I consider the actions of the trial court to warrant reversal.
Although Rule 606(b) clearly provides that a juror may not testify to impeach a verdict, when Danny Smith presented the affidavits the trial court had already set aside the jury's verdict and had granted Smith a new trial. Therefore, there was no verdict in place to trigger the limitations of Rule 606(b). Smith submitted the affidavits to rebut the affidavits submitted by State Farm and to support the trial court's original decision to grant a new trial.
In addition, the affidavits Danny Smith proferred contained information that might tend to show State Farm had obtained signatures on its juror affidavits by coercion and deceit. In particular, one affidavit presented by Danny Smith stated that the juror was contacted by Conley W. Knott, an attorney for State Farm, and was erroneously led to believe that she was the only juror who had not signed one of State Farm's pattern affidavits. Another juror affidavit presented by Danny Smith stated that the juror was contacted by a State Farm attorney and, before being asked to sign a pattern affidavit, was advised of the fact that Danny Smith was challenging the jury's decision. Therefore, I would hold that the trial court could have considered Smith's affidavits as bearing directly on the propriety of State Farm's affidavits.
Based on the foregoing, I Dissent from the majority's summary affirmance of the trial court's order reinstating the jury verdict.
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