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Smith v. State12/22/2000
The appellant contends that the trial court erred in permitting the prosecutor to cross-examine him regarding his testimony on direct examination that he was under the influence of illegal drugs at that time and that he had obtained the drugs in the county jail where he was incarcerated. He further contends that the trial court erred in allowing the prosecutor to investigate his claim that he was under the influence of drugs, and in allowing the probation and parole officer to test him for drugs and to testify to the findings. He argues that his use of drugs in jail and during the trial was irrelevant to the issues in the case, and that the prosecutor's actions distracted the jury.
This issue arose during the direct examination of the appellant when he was testifying in his own behalf in the guilt phase of the trial. After defense counsel questioned him extensively on direct examination about his addiction to and use of drugs in the past and on the date of the commission of the crime, he asked the appellant, "Are you on drugs today?" The appellant replied affirmatively, stating that he was under the influence of marijuana. (R. 1385-86.) During a recess, the probation and parole officer tested the appellant for drugs and subsequently testified that the appellant tested positive for marijuana and that traces of marijuana would remain in a person's system for approximately 28 days after use.
We find no merit in the appellant's contention. An accused in a criminal prosecution cannot be required to take the stand as a witness, but if he elects to do so, which was the case here, he is subject to cross-examination -- just like any other witness. Hutchins v. State, 568 So. 2d 395 (Ala. Crim. App. 1990); Hunter v. State, 57 Ala. App. 651, 331 So. 2d 406 (1976); C. Gamble, McElroy's Alabama Evidence § 185.01(2) (4th ed. 1991). An accused who takes the stand in his own defense may be fully cross-examined as to any inconsistency or implausibility of his testimony-in-chief, and as to matters directed to testing his recollection, motive, and credibility.
Here the actions of the prosecutor in cross-examining the appellant in reference to his being under the influence of drugs while he was testifying and his access to and use of drugs in the county jail were proper and relevant subjects of inquiry, as they bore directly on his credibility as a witness.
XVIII.
The appellant contends that "the record is peppered with references to alleged acts against [Derrick] Gross, and the prosecutor referred to them in closing argument." The appellant cites us to the following pages in the record: R. 667-78, 768, 1441, 1442-44, 1675, 1678, 1679, 1681, 1688-89. He argues that this testimony and the prosecutor's remarks constitute evidence of uncharged crimes and was presumptively prejudicial.
However, the evidence in question clearly falls within a well- recognized exception to the general rule that excludes evidence of prior and subsequent crimes, when the only probative value of that evidence is to show in the defendant a tendency or disposition to commit the now- charged crime: "' t is generally within the res gestae to prove that other persons were killed or injured by the accused at the same time and place as the victim of the now-charged crime.' [C. Gamble,] McElroy's [Alabama Evidence] at § 70.01(12)(b) [(4th ed. 1991)]." Leonard v. State, 551 So. 2d 1143, 1146 (Ala. Crim. App. 1989).
"'Evidence of the accused's commission of another crime is admissible if such other crime is inseparably connected with or is a part of the res gestae of the now-charged crime. This rule is often expressed in terms of the other crime and the now-charged
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