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FORMBY v. STATE12/19/1997
The appellant, Stanley Formby, was convicted in 1996 of the felony offense of driving while under the influence of alcohol (D.U.I.), after having been convicted of three prior D.U.I. violations within the past five years, a violation of §§ 32-5A-191(a)(2) and 32-5A-191(f), Code of Alabama 1975. He was sentenced to four years' imprisonment.
I.
The appellant contends that the trial court erred by failing to give limiting instructions to the jury regarding its consideration of his three prior D.U.I. convictions. The state argues that this issue has not been preserved for appellate review.
Our examination of the record reveals that during a pretrial motion hearing defense counsel challenged the wording of the indictment returned against the appellant. Defense counsel objected to the indictment being read to the jury because it charged that the appellant had had three prior D.U.I. convictions within the past five years. However, defense counsel made no request during the motion hearing (R. 2-9) that any special limiting instructions be given to the jury, either during
the court's preliminary instructions to the jury or at such time when the prior D.U.I. convictions were admitted into evidence. Thus, nothing has been preserved for our review. See Pardue v. State, 571 So.2d 320, 327 (Ala.Cr.App. 1989), rev'd on other grounds, 571 So.2d 333 (Ala. 1990).
Defense counsel also failed to request, at the close of the trial, that the trial court give any supplemental instructions regarding the jury's consideration of the appellant's three prior D.U.I. convictions. At the conclusion of the court's oral charge to the jury, defense counsel made the following objection:
"THE COURT: What says the State?
"MR. WILLIAMSON: Satisfied.
"THE COURT: What says the defendant?
"MR. QUICK: Judge, we have two areas. I didn't hear the Court charge on the lack of evidence and I would like for the Court to charge on that. The other was talking about the defendant's testimony. I would like the Court to go into the fact that just because he testifies and has something to gain or lose does not mean his testimony is not true.
"THE COURT: No, that is argumentative. I will further instruct on the first part."
(R. 184-85.) The trial court then gave further instructions to the jury on reasonable doubt, specifically charging the jury that " reasonable doubt can arise either from consideration of the evidence that has been presented or a reasonable doubt can arise from a lack of evidence." (R. 185.) There were no further objections to the court's charge.
Rule 21.2, Ala.R.Crim.P., provides:
"No party may assign as error the court's giving or failing to give a written instruction or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury."
In the present case, the only objections to the court's charge concerned whether a reasonable doubt could arise from a lack of evidence and whether the jury should discount the defendant's testimony because his freedom was at stake. Defense counsel did not object, nor did he request any limiting instructions concerning the jury's consideration of the appellant's prior D.U.I. convictions. A specific ground of objection waives all other grounds not specified. McGee v. State, 607 So.2d 344, 346 (Ala.Cr.App. 1992); Griffin v. State, 591 So.2d 547, 550 (Ala.Cr.App. 1991).
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