Appeal from Jefferson Circuit Court. (CC-93-1328). Dan Reynolds, TRIAL JUDGE.
Rehearing Denied April 4, 1995. Released For Publication October 30, 1995.
McMILLAN, Judge. All Judges concur.
The opinion of the court was delivered by: Mcmillan
The appellant, Melvin Joseph Stallworth, was convicted of theft of property in the first degree and was sentenced to life imprisonment, pursuant to the Habitual Felony Offender Act.
The appellant argues that the trial court erred in allowing into evidence testimony concerning a witness's identification of him from a police photographic array, because, he says, it was prejudicial and implied that he had a criminal history.
The record indicates that, during the cross-examination of the identifying witness, the appellant called into question the witness's ability to clearly identify the appellant. Thereafter, at the close of his questioning, defense counsel asked the witness when after the offense did he next observe either individual who was present at the scene of the offense, and the witness responded, "three days." Defense counsel then asked the witness when was the next time after the offense that the police had come to see him, to which the witness responded, "about three days...."
On redirect, the State then sought to introduce evidence that, three days after the offense, the police met with the witness, at which time he identified the appellant from a photographic array. This was proper rebuttal by the State. Furthermore, by defense counsel's final questioning during cross-examination of this witness, counsel opened the door for the prosecutor to ask the witness about his meeting with the police three days after the offense. See Guthrie v. State, 616 So. 2d 914, 927 (Ala. Cr. App. 1993); Lewis v. State, 488 So. 2d 1362, 1367 (Ala. Cr. App. 1986). See also Kolmetz v. State, 600 So. 2d 389, 394-95 (Ala. Cr. App. 1991), cert. denied, 600 So. 2d 396 (Ala. 1991).
The appellant argues that the trial court erred in allowing an identification witness to testify that he observed the appellant in an unrelated burglary. Specifically, the appellant argues that the trial court should not have allowed the identification witness to testify that the appellant was involved in a theft of items from his home two months before the instant offense. The appellant argues that this testimony was improper identification evidence and that it allowed the introduction of testimony concerning prior bad acts.
The record indicates that the offense in question occurred in March 1994, when an identifying witness observed a light blue Chevrolet truck parked near a construction area, in which a new house was being built. The witness observed that the truck was present at the construction site for over one-half hour and that there were two black males in or beside the vehicle. The witness then approached the males and questioned them as to why they were there and what they were doing. Some time later, three exterior doors and a prefabricated fireplace from the house were discovered missing. Outside the presence of the jury, the State proffered evidence concerning an event that had occurred before the instant offense. Specifically, the State proffered evidence that this witness had observed the same truck, with the same two black males in it, at his home while it had been under construction. The witness had seen the truck beyond a barricade that had been put up to keep people out of the construction site. When the witness approached the truck, the truck sped away. Undisclosed items of property were found to be missing from the witness's home.
The State argued that this evidence was admissible as identification evidence. The trial Judge, after hearing the testimony, responded that he believed it to be admissible to explain the witness's actions in approaching the truck and the individuals on the occasion of the offense in this case. The trial Judge stated, "It is just relevant to the issues in this case. Not offered solely for proving the prior bad on the part of the defendant." Another statement by the trial Judge tends to indicate that he also believed that this evidence may be relevant as to the issue of identity.
The State argues in its brief to this court that the prior theft was admissible to prove the identity of the perpetrators of the instant theft. The evidence presented showed that the two offenses occurred at houses located in the same subdivision, were separated by only two months, occurred in the afternoon, and that, in both cases, the suspects were two black males ...