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01/13/95 LEWIS FINLEY v. STATE

January 13, 1995

LEWIS FINLEY
v.
STATE



Appeal from Lee Circuit Court. (CC-92-1088). James Gullage, TRIAL JUDGE.

Rehearing Denied March 3, 1995. Certiorari Denied May 5, 1995. As Corrected January 19, 1996.

Montiel, Judge. All the Judges concur. Bowen, P.j., concurs in result only.

The opinion of the court was delivered by: Montiel

ON RETURN TO REMAND

MONTIEL, JUDGE

The appellant, Lewis Finley, was indicted for assault in the second degree in violation of § 13A-6-21, Code of Alabama 1975. A jury found Finley guilty as charged in the indictment. The trial court then sentenced Finley as an habitual offender to 50 years in prison. Following his oral notice of appeal, Finley filed a motion for a new trial in which he raised an ineffective assistance of counsel claim. The trial court did not rule on the motion, saying it had no jurisdiction over the motion because the case was on appeal. Before considering Finley's appeal, this court remanded this case to the trial court for an evidentiary hearing on the issue of alleged ineffective assistance of counsel.

On return to remand, the trial court denied Finley's motion for a new trial. In a written order denying the motion, the trial court found that Finley had effective assistance of counsel at the time of the trial. We need not review this issue, however, because in reviewing Finley's appeal on the merits, we found reversible error as to another issue.

On appeal, Finley argues that the trial court erred in allowing the prosecutor to impeach his testimony by questioning him about collateral crimes that did not involve moral turpitude and that did not fit within any exceptions to the general exclusionary rule, which disallows evidence of collateral bad acts. He also claims the trial court erred in allowing the prosecutor to elicit specific details concerning a prior conviction for second degree assault.

In Alabama a witness can be impeached by showing that the witness had been convicted of a crime of moral turpitude. § 12-21-162(b), Code of Alabama 1975. Clearly, this means that crimes not involving moral turpitude cannot be used to impeach the witness.

In this case, on direct examination of Finley, defense counsel asked him about previous convictions:

"Q. [defense counsel]: Now, Lewis, you

were convicted in 1987 for assault, right?

"A. [Defendant]: Yes, sir.

"Q. And I believe that you've been

convicted for theft-type offenses--

"A. Yes, sir.

"Q. --twice, right?

"A. Yes, sir.

"Q. You're not exactly a choirboy, either, right?

"A. No, sir."

On cross-examination of Finley, the following colloquy was had:

"[Prosecutor]: Mr. Finley, I believe Mr.

Harrison asked you about some of your prior arrests. Do you remember whether or ...


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