Fitch v. State8/31/2001
d to obtain a John Deere brand tractor. Fitch, who cosigned on this loan with Bubba, was liable to the bank for payment of this loan. This $6,000 underlies Fitch's conviction for Count two in case no. CC-97-0282.
The second payment to Perma Corporation was made on October 14, 1994, in the amount of $144,675.60. From this sum Perma Corporation paid Gates Construction $136,175.60. Gates paid Edwards $66,475.60. Edwards paid Bubba $33,235. This payment to Bubba underlies Fitch's conviction for Count three in case no. CC-97-0155. From this $33,235, $25,000 was deposited into Fitch's personal bank account. This underlies Fitch's conviction for Count one in case no. CC-97-0164.
The third payment, in an amount of $36,000 was made to Perma Corporation on November 29, 1994. No charges arose from this payment.
The final payment to Perma Corporation was made on January 10, 1995, in the amount of $31,008.40. This entire amount was paid to Gates Construction. From this $31,008.40, Gates paid Edwards $17,708.40. From this $17,708.40, Bubba was paid $8,546.63. This $8,546.63 received by Bubba underlies Fitch's conviction of Count four in case no. CC-97-0155.
The following issues are raised on appeal.
I.
Fitch contends that the trial court committed reversible error by allowing, over defense objection, prosecution witnesses Hugh Raymond Evans III, assistant director and general counsel for the Alabama Ethics Commission, and David Howell, audit manager with the State Department of Examiners of Public Accounts, to give their opinions as to the ultimate issue in the case, contrary to Rule 704, Ala.R.Evid.
Rule 704, Ala.R.Evid., states: "Testimony in the form of an opinion or inference otherwise admissible is to be excluded if it embraces an ultimate issue to be decided by the trier of fact."
"An ultimate issue has been defined as the last question that must be determined by the jury." Tims v. State, 711 So. 2d 1118, 1125 (Ala.Crim.App. 1997).
I-A.
Evans testified that he is an attorney and that since 1995 he has served as assistant director and general counsel for the Ethics Commission. His job responsibilities included reviewing and analyzing complaints, prosecuting ethics violations, and writing advisory opinions. Evans was familiar with § 36-25-5(a), Ala. Code 1975, the statute which Fitch is accused of violating. In 1994, § 36-25-5(a) stated:
"No public official or employee shall use an official position or office to obtain direct personal financial gain for himself, or his family, or any business with which he or a member of his family is associated unless such use and gain are specifically authorized by law."
The following exchange is the basis of Fitch's claim that the trial court committed reversible error by allowing Evans to give his opinion as to the alleged ultimate issue in the case.
"Q [Prosecutor]: All right. If there had been competitive bids, as there has been in this situation, and the Commission was considering whether to award the contract by negotiation to lower than a competitive bid, does the Ethics Law permit a Commissioner to vote on the awarding of that contract, absent a competitive bid, after negotiation, if he has a personal interest in the contract? Can he do that?
"A [Evans]: In my opinion --
"MR. BAXLEY: I object. The question is -- frankly, I didn't understand it. And, also, I think if -- if I do understand it, I think it calls for an opinion on the ultimate conclusion of the case.
"MR. WARD [defense counsel]: Barred by Rule 704.
"MR. BAXLEY: Barred by Rule 704.
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