Jennings v. State
Jennings v. State
Opinion
The appellant, Tropchy Jennings, was convicted of robbery in the first degree, a violation of §
The state's evidence tended to show that an individual entered a Jr. Food Store in Headland, Alabama, on January 25, 1989, pulled out a gun, and ordered the attendant to hand over the money in the cash register. The appellant left with approximately $20.00 in cash and approximately $13.00 in food stamps. At trial, the attendant identified the appellant as the person who committed the robbery. The appellant argued at trial that he had been in the Jr. Food Store earlier that evening but that he was not the person who robbed the attendant. The appellant raises four issues on appeal.
"Q [Prosecutor]: Isn't it true that you have been convicted of the crime of Grand Larceny —
"Mr. Clenney [Defense Counsel]: Judge, I object to this.
"The Court: What grounds?
"Mr. Clenney: Improper predicate.
"Mr. Valeska [Prosecutor]: No, sir, Judge.
"The Court: Overruled on that ground.
"Mr. Valeska: Let me ask you this.
"Q — Isn't it true that you have been convicted of the crime of Grand Larceny, Second Degree, in the State of Florida, a crime involving moral turpitude and received a five year sentence? Isn't that true?
"Mr. Clenney: I object. That is improper. That is not the correct way to do that.
"The Court: Overruled on the ground of predicate, Mr. Clenney. You may proceed.
"Mr. Valeska: Yes, sir.
"Q — Isn't that true, Mr. Jenkins?
"A — No.
"Q — You deny that, under oath?
"A — Yes.
". . . .
"Q — Do you deny that you have been convicted of the crime of moral turpitude of possession of burglary tools on April 15, 1980, in Florida, and received a year and a day on that sentence in Florida? You deny that?
"A — Yes.
". . . .
"Q — You also deny that you were convicted of a crime involving burglary of a structure, a felony, second degree felony in Florida and received a year and a day sentence in Florida on that?
"A — Yes."
The state argues that the objection "improper predicate" was not specific enough to preserve this issue for purposes of appeal. (The appellant also argued this issue at length in his motion for new trial.) We do not agree. "The purpose of the objection rule is to give the trial court an opportunity to correct the alleged error or defect called to its attention before submission of the case to the jury." Ex parte Knight,
In the instant case, defense counsel made the objection: "improper predicate." "Predicate" is defined in Random HouseDictionary of English Language (2d ed. 1987) as "[t]o found or derive, to base." Ballentine's Legal Dictionary (1969) defines predicate as "a basis or ground of action, defense, or argument." It is often used as a legal term to denote the laying of a foundation for the receiving of materials into evidence. See Traylor v. State,
Initially we observe that any prior convictions involving moral turpitude would be admissible for impeachment purposes. See §
"In Bezotte v. State,
358 So.2d 521 ,525 (Ala.Cr.App. 1978), the Court of Criminal Appeals stated: 'Even though a prior conviction involving moral turpitude may be shown upon the cross-examination of a witness, this examination should be subject to the limitation that it be conducted in good faith. See 3 A.L.R.3d 965, and the cases cited therein, concerning lack of documentary proof of a prior felony conviction.'"In Gregath v. Bates,
359 So.2d 404 (Ala.Civ.App. 1978), Holmes, J., writing for the court, specifically addressed the same question now pending before us:" 'The defendant alleges as error the trial court's refusal to admit testimony which attempted to impeach a witness. Specifically, the defendant was attempting to impeach the testimony of one of the plaintiffs by showing a conviction for a crime involving moral turpitude, i.e., conspiracy to commit gambling.
" 'The record reveals the plaintiff responded to the defendant's questions and those propounded by the court by stating he didn't know if he had been convicted of that particular offense. Defendant attempted to produce a "rap sheet" which supposedly showed the charge the plaintiff was convicted of. The trial court ruled that this was not the best evidence of such a conviction. We agree.
" 'When a witness denies that he has been convicted of the crime, it becomes incumbent upon the impeaching party to prove the conviction. This can be done by introducing the original court record of the conviction or a certified or sworn copy. The prior conviction cannot be proven by the offering of oral testimony by the impeaching party. See Headley v. State,
51 Ala. App. 148 ,283 So.2d 458 (1973).'"We are of the opinion that Gregath, although it was a civil case, correctly states the law of this jurisdiction. . . ."
As Judge Tyson restated in Glover v. State,
Volunteered statements are not barred by Miranda. See Mirandav. Arizona,
For the reasons stated in part I above, this case is reversed and remanded to the Circuit Court for Henry County for a new trial or other proceedings. Other matters presented are not addressed here, because it is unlikely that they will recur in a new trial.
REVERSED AND REMANDED.
All the Judges concur.
Reference
- Full Case Name
- Tropchy Jennings v. State.
- Cited By
- 26 cases
- Status
- Published