Ward v. StateWard v. State
Alfonzo Ward was indicted for the offense of burglary in the first degree, in violation of § 13A-7-5, Code of Alabama 1975. The jury found Wаrd guilty as charged in the indictment, and he was sentenced to 22 years’ imprisonment. Two issues are raised on aрpeal.
I
Ward contends that the trial court erred in sustaining the State’s objection to his cross-examinatiоn of the investigating officer concerning similar crimes that were committed in Jefferson County after his incarсeration.
During the State’s case, Sgt. C.L. Walden, a detective sergeant for the Jefferson County Sheriff’s Depаrtment, Bessemer Division, testified that he was the detective in charge of the investigation of this burglary. On cross-exаmination, Ward asked Walden the following question:
“Q. Have you been involved in any other investigations related to burglaries involving — involving crimes of a sexual nature in the last — since August the 27th— 22nd, 1989?”
The trial court sustained the State’s objeсtion to this question, and a side-bar was held outside the jury’s presence. At this time, defense counsel explained his purpose for asking the question:
“MR. ALEXANDER: There are — it is my contention that the person that did these, two are instаnces, or three, in which elderly ladies have been broken into through their window.
“THE COURT: In the Edgewater Community?
“MR. ALEXANDER: In the Bessemer Cut-Off area, one in Fairfield and one in Hueytown.
“THE COURT: Maybe a couple in Georgia too. It’s too remote and broad. I will sustain thе objection. If you have an episode or episodes in this community, in this same geographical arеa, I will allow you to ask him about it if you limit it to this area.
“But as far as anyone in Jefferson County I will sustain the objectiоn to it.”
To be competent, evidence must tend to prove or disprove issues being litigated. Beckley v. State,
II
Ward contends that the trial court committed rеversible error in allowing hearsay evidence to come in.
During the prosecutor’s direct examination of Geneva Tunnello, the next-door neighbor of the victim, the following exchange occurred:
“Q. Where do you live in comparison to Ms. Mowery?
“A. Next door to her.
“Q. Now, do yоu recall the early morning hours of August 22nd, 1989?
“A. Yes, ma’am, I do.
“Q. Where were you?
“A. I was in bed.
“Q. And do you recall what happened that morning?
“A. Yes, ma’am. My daughter lived— slept in the bedroom by me and she come to mе and she said — ‘mama’ that was about 4:15.
“MR. ALEXANDER: Objection.
“A. And said, ‘Mama, I hear someone hollering,’ “Lord help me” ’.
“THE COURT: Overruled.
“A. About the time I got оut of bed the telephone rung and it was Lifeline. And they said, ‘Lifeline, Police, Ms. Mowery.’
“Q. What did you do next?
“A. I hung the phone up and I called 911 and told them to send the police to Ms. Mowery’s, 1105 Galveston Street.
“Q. And then what happened after that?
“A. Then I dialed Ms. Mowery again and I said, ‘Mom Mowery, are you all right?’ And she said—
“MR. ALEXANDER: Objection.
“THE COURT: Overruled.
“A. Bring your key — she said bring your key, don’t come by yourself, and bring a gun.”
Although we acknowledge that this testimony constitutes hearsay evidence which does not appear to come within any recognized exception thereto, we nevertheless find the trial court’s erroneous admission of this testimony tо be merely harmless error. Rule 45, A.R.App.P.
Harmless error occurs when the hearsay evidence erronеously admitted was cumulative of other admissible evidence on the Same issue. Thompson v. State,
In the instant case, the evidеnce of Ward’s guilt was overwhelming. In particular, the victim testified that during the early morning hours of August 27, 1989, Ward crashed into hеr bedroom through the window and demanded that she have sex with him. Ward then dragged the victim from her bedroom into the dеn where she sent a message over “Lifeline,” her alarm device, which said, “Police, Police.” The phоne then rang several times, and the victim testified that her neighbor, Geneva Tunnello, was on the phone and that the victim told Tunnello to come to her house and bring the door key, her gun, and someone with her. Ward then began to hit the victim repeatedly around her head and then left the house.
The victim was able to pick Ward out of a photographic array because she had seen him on her street prior to the burglary and bеcause he had previously asked her if he could do some yard work for her. The victim further testified that Ward wаs wearing an orange and black baseball cap at the time of the burglary. The fibers in the cap, which wаs found on the victim’s bed, matched Ward’s hair fibers. Ward’s half brother, moreover, identified the baseball cap аs originally belonging to him but stated that he had given it to Ward some time before August 22, 1989. A companion of Ward’s also tеstified that he had dropped Ward off near the victim’s house
In light of the overwhelming evidence of Ward’s guilt, we find thе trial court’s admission of Tunnello’s hearsay evidence, which was cumulative of other admissible evidencе on the same issue, to be merely harmless error.
The foregoing opinion was prepared by the Honorable JAMES H. FAULKNER, a former Alabama Supreme Court Justice, and his opinion is hereby adopted as that of the court.
The judgment of the circuit court is affirmed.
AFFIRMED.