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Smith v. State12/22/2000
Darden v. Wainwright, 477 U.S. 168 (1986); Melson v. State, [Ms. CR-95-1681, March 26, 1999] __ So. 2d __ (Ala. Crim. App. 1999); Henderson v. State, 583 So. 2d 276 (Ala. Crim. App. 1990), aff'd, 583 So. 2d 305 (Ala. 1991); Fifth and Fourteenth Amendments, U.S. Const.
A.
The appellant contends that the prosecutor wrongfully injected facts into the case by the questions he asked certain witnesses.
First, the appellant contends that it was improper for the prosecutor to allude to the fact that Lekina Smith had offered to plea- bargain with the prosecution. Lekina Smith was the appellant's girlfriend, was involved in the commission of the crime, and had been indicted along with the appellant for the same capital offense. Her attorney had approached the prosecutor in an attempt to plea-bargain for his client; however, the prosecutor had refused. Before trial, Lavoris Smith, Lekina's mother, made two statements in the presence of the prosecutor, one with Chief Assistant District Attorney Maxwell also present and the other with Investigator Robert Jenkins present, that the appellant had contacted her by telephone from the county jail, and that he had told her that Lekina had nothing to do with what happened, that he did the shooting, that it was over a drug deal, and that he shot Flournoy and shot the other persons in the residence so that there would be no witnesses to the crime. The prosecution called Lavoris Smith as a witness, and she testified that she told the prosecutor that she had received the telephone call from the appellant, that the appellant had told her that her daughter had had nothing to do with the shootings, and that he had done the shootings. However, she denied that she told the prosecuting attorney that the appellant had told her that he shot Flournoy over a drug deal and shot the others to eliminate the witnesses. She testified that it was not the appellant who told her that, but that it was her daughter, Lekina. Lekina was not called as a witness and had made it known that if she were called she would invoke the Fifth Amendment. The prosecutor claimed that he was surprised by Lavoris's testimony, and the trial court permitted him to cross-examine her as a hostile witness. She continued to deny that she had made such a statement, and the prosecution called the assistant prosecutor, Maxwell, and the investigator, Jenkins, as impeachment witnesses; each testified that he was present when Lavoris had stated to the prosecutor about a week before trial that the appellant had told her that the shooting occurred over money owed from a drug deal and that he had shot the other persons, who were not involved in the drug deal, so that there would be no witnesses to the crime.
The credibility of a witness may be attacked by any party, including the party calling the witness. Rule 607, Ala.R.Evid. "With the adoption of Rule 607, Ala.R.Evid., in 1996, a calling party can now impeach its own witness, using 'all weapons from the arsenal of impeachment that historically were reserved generally for opposing witnesses.' C. Gamble, McElroy's Alabama Evidence, § 165.01(6)(a) (5th ed. 1996)." Burgin v. State, 747 So. 2d 916, 918 (Ala. Crim. App. 1999). A right to impeach one's own witness is not absolute, and may be checked if it is abused. "Impeachment is improper when employed as a guise to present substantive evidence to the jury that would be otherwise inadmissible." Id. From the facts before us, we find no error in the trial court's allowing the prosecution to treat Lavoris Smith as a hostile witness and allowing it to impeach her testimony by use of prior inconsistent statements. The record does not support a conclusion that the prosecutor cross-examined and impeached t
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