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12/02/94 RODRICK HALL v. STATE

December 2, 1994

RODRICK HALL
v.
STATE



Appeal from Jefferson Circuit Court. (CC-93-1260). James Garrett, TRIAL JUDGE.

Taylor, Judge. All The Judges Concur Except Montiel, J., Who Concurs IN Part And Dissents IN Part With Opinion.

The opinion of the court was delivered by: Taylor

TAYLOR, JUDGE

The appellant, Rodrick Hall, was convicted of trafficking in cocaine, in violation of § 13A-12-231, Code of Alabama 1975. He was sentenced to 20 years in the penitentiary.

I

The appellant initially contends that the trial court erred in refusing to allow him to use a prior conviction to impeach one of his codefendants. Specifically, he contends that the codefendant had prior convictions in the state of Georgia for a crime involving moral turpitude and that evidence of those convictions, therefore, was admissible for purposes of impeachment. C. Gamble, McElroy's Alabama Evidence, § 145.01(7) (4th ed. 1991).

There was some confusion in the record concerning what prior convictions the codefendant had in the state of Georgia. The record reflects that defense counsel initially stated that the witness had two prior convictions in Georgia for possession of cocaine. The Georgia Code prohibiting this offense reads: "It is unlawful for any person to purchase, possess, or have under his control any controlled substance." Ga. Code Ann. § 16-13-30(a) (Michie 1992). The trial court held that this was not a crime involving moral turpitude and disallowed the introduction of evidence concerning it for purposes of impeaching the witness.

Initially, we must determine whether possessing cocaine is a crime involving moral turpitude under Alabama law. Carreker v. State, [Ms. CR-93-1858, November 11, 1994] ___ So.2d ___ (Ala. Cr. App. 1994). When does a crime involve "moral turpitude"? Moral turpitude was defined in Nelson v. State, 35 Ala. App. 179, 44 So.2d 802 (1950). The court defined moral turpitude as follows:

"'Anything done contrary to Justices, honesty, principle, or good morals; an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary.' Moral turpitude implies something immoral in itself regardless of the fact whether it is punishable by law. The doing of the act and not its prohibition by statute fixes the turpitude. Pippin v. State, 197 Ala. 613, 73 So. 340; Gillman v. State, 165 Ala. 135, 51 So. 722.

"If a conviction was for an offense involving moral turpitude, it may be shown to affect the credibility of a witness, regardless of whether it be a felony, or a misdemeanor. Hutchens v. State, 207 Ala. 126, 92 So. 409."

35 Ala. App. at 182, 44 So.2d at 805.

The courts of this state have never had occasion to address directly the question whether possession of cocaine is a crime involving moral turpitude. Harrell v. State, 555 So.2d 257 (Ala. Cr. App.), aff'd, 555 So.2d 263 (Ala. 1989). However, in Ex parte McIntosh, 443 So.2d 1283 (Ala. 1983), the Alabama Supreme Court held that possession of marijuana is not a crime involving moral turpitude. We consider ourselves bound to apply the reasoning of the Alabama Supreme Court in McIntosh ; it is our duty to conform our holdings to those of the Supreme Court. The Alabama Supreme Court stated in McIntosh :

"We cannot hold that the mere possession of marijuana is a crime involving moral turpitude, even though it is classified as a felony. In so holding, we draw a distinction between possession for personal use and possession for resale to others. We cannot see how felony possession for personal use differs from misdemeanor possession for personal use as an indicium of a witness's future trustworthiness. The legislative choice to punish subsequent personal possessory offenses, crimes mala prohibita in nature, more severely than the initial possessory offense, does not, by itself, change the character of the offense as it relates to moral turpitude. Possession for resale, however, takes on an entirely different character, one which does involve moral turpitude. Gholston v. State, [338 So.2d 454 (Ala. Cr. App. 1976)].

"Trafficking in and encouraging others to utilize a controlled substance, such as marijuana, indicates far greater untrustworthiness and depravity of character than personal consumption of a controlled substance. One could logically assume that, because of the illegal nature of trafficking itself, a person would likely lie and operate covertly in order to engage in such selling. On the other hand, personal consumption is likely achieved without such conduct."

443 So.2d at 1286.

From the above statement, it appears that the Alabama Supreme Court based its decision in McIntosh on the fact that possession of marijuana is a personal offense that does not involve others as the crime of distributing marijuana would. The crime of possession of cocaine is the same in that respect. Consequently, we hold that the trial court did not err in refusing to allow defense counsel to impeach the appellant's codefendant using a prior conviction for possession of cocaine. We would invite clarification of this issue by our Supreme Court in the event this case comes to them.

The appellant contends in his brief that one of the witness's prior convictions in Georgia was for possession of cocaine with intent to distribute. (This offense is defined in Ga. Code Ann. § 16-13-30(b) (Michie 1992); possession of a controlled substance and possession with intent to distribute are two distinct crimes in Georgia.) There was some Discussion of this in the record. However, the court specifically noted that if the testimony revealed that any of the witness's prior convictions was for distribution, the court would reconsider its ruling. The court was well acquainted with the fact that in Alabama evidence of a prior conviction for distributing a controlled substance is admissible for purposes of impeaching a witness. Gholston v. State, 338 So.2d 454 (Ala. Cr. App. 1976). It is clear from the transcript that the court would not allow the witness to be impeached with a prior conviction for possession of cocaine. There was no further mention of the fact that one of the prior convictions could or might have been for distributing a controlled substance. Based on the record before us, we hold that the court did not err in refusing to allow the appellant to use the prior conviction for impeachment purposes.

II

The appellant further contends that the court erred in allowing two police officers to testify as to the market value of cocaine because their testimony had no ...


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