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Fitch v. State8/31/2001
ecified, and the trial court will not be put in error on grounds not assigned at trial." Richerson v. State, 668 So. 2d 130, 133 (Ala.Crim.App. 1995).
Additionally, any detriment to Fitch caused by the denial of the admission of the advisory opinion was, at most, harmless because Fitch was allowed a thorough and sifting cross-examination of Evans. See, Tucker v. State, 650 So. 2d 534, 538 (Ala.Crim.App. 1994) (circuit court's erroneous ruling that the defense could not impeach witness with a prior conviction was harmless error because it did not injuriously affect the defendant's substantial rights); Walker v. State, 581 So. 2d 570, 572 (Ala.Crim.App. 1991) (although trial court erroneously disallowed accused's attempt to impeach State's witness by prior inconsistent statement, error was harmless because accused conducted a "thorough and sifting" cross-examination of witness and successfully impeached witness with another self-contradiction); Williams v. State, 451 So. 2d 411, 420 (Ala.Crim.App. 1984) (exclusion of evidence that would have impeached witness was harmless error when witness's credibility had already been called into question by two other pieces of evidence).
Moreover, Fitch did not show the relevancy of the evidence at trial through an offer of proof. " n offer of proof is necessary before we can review a trial court's ruling on the limitation of cross-examination." Smith v. State, [Ms. CR-98-0206, May 26, 2000] So. 2d , (Ala.Crim.App. 2000). The same is true concerning the admissibility of the advisory opinion -- an offer of proof was necessary to discern the relevancy of the ethics opinion Fitch sought to admit.
Moreover, it is this Court's opinion that Advisory Opinion 97-97 was not relevant to Fitch's case. "Relevant evidence is defined as `evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.' Rule 401, Ala.R.Evid." Hutchins v. State, [Ms. CR-99-0139, April 28, 2000] So. 2d , (Ala.Crim.App. 2000). To be relevant, the advisory opinion would have to shed light on whether Fitch used his official position, in a way not authorized by law, to obtain financial gain for himself, his business, or his family. "The Alabama State Ethics Commission regularly issues advisory opinions concerning possible violations of the Alabama Ethics Act." Kirkland v. State, 529 So. 2d 1036, 1040 (Ala.Crim.App. 1988). "Advisory opinions issued by the State of Alabama Ethics Commission are not law, but they may protect certain persons from liability under the Ethics Act." Alabama's Amended Ethics Law, 57 Ala. Law. 34 (1996).
"The Ethics Commission is granted the authority in Code 1975, § 36-25-4(9), to render advisory opinions. Such an opinion has the effect of protecting `such person to whom it is directed from liability to either the state, county or municipal subdivision of the state because of any official action or actions performed as directed or advised in such opinion.' § 36-25-4(9)." Underwood v. State, 439 So. 2d 125, 127 (Ala. 1983)(emphasis added).
"`The written opinion of the state ethics commission provided to anyone shall protect such person to whom it is directed from liability to [the state] ... because of any official action or actions performed as directed or advised in such opinion.'" Dill v. State, 723 So. 2d 787, 803 (Ala.Crim.App. 1998).
In essence, the advisory opinion is a means by which a public official provides disclosure of a proposed plan and receives an endorsement or rejection of that plan from the Ethics Commission. An advisory opinion from the Ethics Commission, issued upon complete a
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