Smith v. State12/22/2000
sentence shall be received at the sentence hearing regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements.' Ala. Code 1975, § 13A-5-45(d). See also Stephens v. State, 580 So. 2d 11 (Ala. Crim. App. 1990). Thus, the appellant's hearsay claim has no merit. he testimony concerning the violence surrounding the robbery conviction was properly admitted to show the violent nature of the offense under Ala. Code 1975, § 13A-5-45(c). Siebert v. State, 562 So. 2d 586 (Ala. Crim. App. 1989), aff'd, 562 So. 2d 600 (Ala.), cert. denied, __ U.S. __, 111 S. Ct. 398 ... (1990)." 600 So. 2d at 364. See also Smith v. State, 698 So. 2d 189, 212-13 (Ala. Crim. App. 1996) (testimony of the circuit clerk regarding the appellant's testimony at a prior proceeding wherein the appellant described his violent behavior during his commission of a burglary was properly admitted pursuant to §§ 13A-5-45(c) and (d) and was relevant and of probative value), aff'd, 698 So. 2d 219 (Ala. 1997).
XIII.
The appellant argues that evidence of his prior conviction for first-degree assault was improperly admitted at trial over his objection. During the prosecution's case-in-chief, the prosecutor, on redirect examination, asked a hostile witness whether she had heard "rumors and reports" concerning the appellant's conviction and 10-year sentence for assault in the first degree. Subsequently, the appellant took the stand and testified in his own defense. Upon questioning by his counsel, the appellant admitted that he had four prior felony convictions, including the one for first-degree assault.
Arguably, the defense opened the door to the prosecutor's inquiry into the appellant's prior convictions by attempting to show that Smith had a non-violent character; however, we need not reach the issue of the propriety of the admission of evidence of his prior assault conviction:
"Once the defendant took the witness stand, those prior convictions were admissible for purposes of impeachment. [Charles W. Gamble, McElroy's Alabama Evidence] at § 45.01 [(3d ed. 1977)]. Any error in the admission of the prior convictions as part of the State's case in chief was reduced to harmless error when the defendant testified, without objection, on his own behalf and admitted those prior convictions. Ex parte Williams, 484 So. 2d 503 (Ala.1986). `A defendant cannot complain of the admission of improper evidence when he himself has testified to the same facts.' Lewis v. State ex rel. Evans, 387 So. 2d 795, 807 (Ala.1980). It is of no `consequence that this testimony may have been incompetent at the time it was offered, if it was subsequently rendered [competent].' Hanners v. State, 147 Ala. 27, 41 So. 973, 975 (1906). ` hile, ordinarily, in the introduction of evidence, it should be competent at the time when offered, still, if rendered competent by the subsequent introduction of other evidence, this is sufficient to correct and cure any error that might otherwise have existed in the admission of the evidence first offered.' Collins v. State, 138 Ala. 57, 34 So. 993, 994 (1903)." Rowe v. State, 522 So. 2d 328, 329-30 (Ala. Crim. App. 1988).
Perhaps in anticipation of this response, the appellant asserts the following:
"Had [the defense] felt that the state had not proved its case, or had they determined that appellant's mental capacity could be proved adequately through the expert Dr. Crook, might have decided to exercise his right to silence, and the evidence that he had been arrested, convicted, and jailed before would not have come before the jury." (Appellant's brief, p. 44.)
When co
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 Alabama DUI Attorneys
DUI Lawyers
|