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Univ. of South Carolina School of Law

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Wednesday, October 5, 2011

Tough Guise: Court Of Criminal Appeals Of Alabama Seemingly Errs In Rule 607 Appeal

Like its federal counterpart, Alabama Rule of Evidence 607 provides that

The credibility of a witness may be attacked by any party, including the party calling the witness.

That said, Impeachment is improper when employed as a guise to present substantive evidence to the jury that would be otherwise inadmissible. And yet despite citing this principle, the Court of Criminal Appeals of Alabama found no problem with exactly this type of subterfuge in its recent opinion in Trawick v. State, 2011 WL 4511235 (Ala.Crim.App. 2011).

In Trawick, Vincent Martez Trawick was convicted of murder and was given a sentence of 99 years' imprisonment based upon the fatal shooting of Zach "Big Dothan" Severson. After making an oral motion for a judgment of acquittal and filing a motion for a new trial, which were both denied, he appealed.

Part of the basis for his appeal was that the trial court erred by permitting the prosecution to impeach two witnesses for the prosecution through prior inconsistent statements. At trial, Kenya Jackson testified as a witness for the prosecution that he did not see Trawick shoot Severson. Cornelius Garlington later testified and denied that he spoke with law enforcement about Severson's murder and denied that he knew Vincent Trawick and Alex Trawick. After these witnesses made these claims, the prosecution impeached them with statements that they made to law enforcement officials implicating Vincent Trawick in the shooting.

In his appeal, Trawick claimed that this impeachment violated  Alabama Rule of Evidence 607. In response, the Court of Criminal Appeals of Alabama preliminarily noted that Rule 607

authorizes a party to bring against his own witness all weapons from the arsenal of impeachment that historically were reserved generally for opposing witnesses. This power resides in the prosecution in a criminal case, the criminal defense, and any civil party. One may, for example, impeach his own witness by showing that the witness made a statement or performed an act that is inconsistent with the witness' present testimony. Bias-indicating acts or statements could likewise be used for such an attack. Other witnesses may be called to contradict the witness' version of the facts.

It then cautioned, however, that

the government must not knowingly elicit testimony from a witness in order to impeach him with otherwise inadmissible testimony....Impeachment is improper when employed as a guise to present substantive evidence to the jury that would be otherwise inadmissible....A determination must be made as to whether the government examined the witness for the primary purpose of placing before the jury substantive evidence which is otherwise inadmissible....
As this court stated in Burgin, '"'[i]t would be an abuse of the rule...for the prosecution to call a witness that it [knows will] not give it useful evidence, just so it [can] introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence.'" 

That said, the Court of Criminal Appeals of Alabama found that this did not occur in the case before it. According to the court,

Garlington's and Jackson's statements to police were not admissible as substantive evidence, but were only admissible as impeachment evidence to show that Garlington and Jackson were not "worthy of belief."...As this Court stated in Burgin v. State,...the prosecution was not entitled to present Garlington's and Jackson's statements to the jury as evidence that Trawick caused Severson's death. Further, as to Jackson's statement, the trial court instructed the jury that the statement was admitted as a prior inconsistent statement....Later, when the trial court charged the jury before deliberations, it stated: "A prior inconsistent statement of a witness who is not a defendant, although usable for impeachment purposes, cannot be used as substantive evidence of an accused's guilt."...Therefore, this evidence was not admitted as substantive evidence and could not have been considered by the jury as such.

Really? Of course, the evidence was technically not admitted as substantive evidence, but that's not really the point, is it? The point is that the prosecution ostensibly called Jackson and Garlington knowing that they would not implicate Trawick in the shooting just so that it could impeach them through their prior statements and hope that the jury used those statements as substantive evidence of Trawick's guilt. And if that was the case, the trial court erred in deeming this impeachment permissible under Alabama Rule of Evidence 607.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/10/607-trawick-v-state-so3d-2011-wl-4511235alacrimapp2011.html

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