DocketNumber： SC 392
Citation Numbers： 288 So. 2d 826, 292 Ala. 71, 1973 Ala. LEXIS 1029
Judges： McCall, Merrill, Coleman, Harwood, Faulkner, Jones, Heflin, Bloodworth, Maddox
Filed Date： 12/6/1973
Status： Precedential
Modified Date： 10/19/2024
(concurring specially):
I concur in that part of Mr. Justice McCall’s opinion for the court holding there was reversible error in the denial of defendant’s “motion to produce” the substance which the state expected to use as evidence against him. Jackson v. State, 243 So.2d 396 (Miss., 1971). I also concur in the conclusion that there was no reversible error because of “double jeopardy.”
Whether or not there was reversible error in overruling the defendant’s objection to the argument by the prosecuting attor-ney as being a comment on his “failure to take the stand”- need not be reached in view of the reversal for denying the motion to produce. It is a close question, in my judgment. Hopefully, such a questionable argument will not reoccur on another trial.
The remaining issue is whether the questions put to defendant’s witnesses by the state as to whether or not they used drugs or marijuana were admissible to show bias.. Again, I must state that I have grave doubts as to the admissibility of such evidence even to show bias. Judge McElroy, in his valuable treatise Law of Evidence in Alabama, 2nd Ed., Vol. 1, Sec. 149.01(7), p. 352, cites cases allowing cross-examination by both state and defendant to show that witness was arrested or indicted for “the same criminal act” as that for which accused is being tried. But, the questions posed clearly do not fall within that rule. Here, the witnesses were asked whether they had ever used drugs or smoked marijuana. I have been unable to find any case in Alabama permitting such a broad inquiry to show bias. None of the cases cited in the majority opinion support such holding. Nevertheless, I would not reach this issue in view of the reversal on other grounds.