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Fitch v. State8/31/2001
harmed by this testimony; this issue is moot. Second, the trial court gave a curative instruction regarding this testimony.
The trial court gave the jury the following curative instruction:
"THE COURT: ... I want to give you a -- some direction and instruction on an issue that has come up. Earlier in the trial, when I ... read the indictments in this case and you understand what the charges are. In all three of these cases, several of the counts allege that the Defendant used his official position for personal gain and that's been referred to, basically, as kind of a shorthand in this trial, as the Ethics Law because that's, basically, what it is labeled or called. So, we have done that as a shorthand.
"Now, later on when I charge you, I will talk about the elements of these cases, the elements that the State must prove beyond a reasonable doubt, and we'll get into that in much more detail later. But as to these ethics charges, I'll call them, one of the elements that must be proven is that such use and gain is not specifically authorized by law, and that must be proved to your satisfaction. Now, like I said, we'll discuss that later. And there has been evidence as to that. However, when this last witness testified -- and I don't remember the gentleman's name.
"MR. JOHNSTON: Evans.
"MR. BAXLEY: Evans.
"THE COURT: He's from the -- a lawyer with the Ethics Board. There were some questions asked and the answers that were elicited were -- and I don't remember the specific --specifically the exact words he used but they were that the allegations that were made here, if they did happen, that they were a violation of the Ethics Law. That is not for him to determine. The determination of whether these acts, as alleged, are a violation of the Ethics Law is for your determination. So, basically he has given an opinion or a verdict in the case from the witness stand. That is not his job in this case. That will be your job at the end of the case. So, I am instructing and directing you that you may not consider that witness's testimony as to whether or not these acts violated the Ethics Law. I am instructing you that. You are to disregard that.
"Now, the other evidence as to the use and gain not being specifically authorized by law, of course, you may consider that. Now, as to this direction, what I'm going to do now is direct you to put that out of your mind. And now I am going to ask you that in your deliberations in this case if you can put that out of your mind as you consider the evidence here. And I am just going to go down the line and ask each person if then can do that and you can just nod your head or shake whatever your answer is. I'll start here. Can you put that out of your mind as a juror in this case?
"(Jurors polled.)
"THE COURT: And let the record show that all jurors indicated that they could do that." R.1056-59 (emphasis added).
"`The admission of illegal evidence, which is subsequently excluded and the jury instructed to disregard such evidence, cures the error, and vitiates the exception reserved to its admission.' Smith v. State, 107 Ala. 139, 18 So. 306 (1894). See also Smith v. State, 340 So. 2d 84 (Ala.Crim.App. 1976); Watson v. Adams & Watson, 187 Ala. 490, 65 So. 528 (1914)." Smith v. State, [Ms. CR-95-0205, August 25, 2000] So. 2d , (Ala.Crim.App. 2000).
Any possible error was rendered harmless by the verdict of not guilty on the voting count, and by the curative instruction given by the trial court.
I-B.
The following transpired at trial regarding the questioning of auditor David Howell.
"Q [By Mr. McCoo
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