Petition for Writ of Certiorari — Keel v. Alabama

} ‘im Supreme Court, U.S,

89-288 fF ercen

'}) AUG 15 1989

PANIOL, JR.

CLERK

No.

In the

Supreme Court Of Che United Siates

October Term, 1989

KENNETH KEEL,

Petitioner

¥S.

THE STATE OF ALABAMA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE ALABAMA SUPREME COURT

J. Wttson DINSMORE

Dinsmore, Waites & Stovall

Suite 100, The Age Herald

Building

2107 Fifth Avenue North

Birmingham, Alabama 35203

(205) 252-975]

Attorney for Petitioner Keel

OF COUNSEL:

David S. Luker

Tamera K. Erskine

Luker and Brewer

Barrister Hall

2205 Morris Avenue

Birmingham, Alabama 35203

(205) 251-6666

i

QUESTIONS FOR REVIEW

I. WHETHER PETITIONER WAS EGREGIOUSLY

DENIED DUE PROCESS OF LAW AND THE RIGHT TO

A FAIR AND IMPARTIAL TRIBUNAL THROUGHOUT

THE STATE OF ALABAMA’S CRIMINAL PROCEEDING

AGAINST ii IM. SPECIFICALLY, WHETHER THE AD-

MISSION OF TAPE RECORDED CONVERSATIONS

ALLEGEDLY BETWEEN THE DEFENDANT AND A

CONFIDENTIAL INFORMANT, THE IMPROPER IM-

PEACHMENT OF THE DEFENDANT'S WITNESS, AND

THE STATE GOING INTO DETAILS OF THE PRIOR

CONVICTION OF THE DEFENDANT'S WITNESS

SEPARATELY AND SEVERALLY RENDERED THE

PROCEEDING A TRAVESTY OF JUSTICE AND A

MOCKERY OF FUNDAMENTAL FAIRNESS.

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF CONTENTS

es be eS he ee £ S eee Oe ee ee ee

page

TABLE QF AG TPRRRE FEES Gsicssasunidawnaeei eens iV

OPINIONS BELOW

STATEMENT OF JURISDICTION

CONSTITUTIONAL PROViSIONS

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

I.

Peationer Was Egregiously Denied Due Pro-

cess of Law And The Right To A Fair And

Impartial Tribunal Through The State of

Alabama’s Criminal Proceeding Against Him.

Specifically, The Admission Of Tape Recorded

Conversations Allegedly Between The Defen-

dant And A Confidential Informant, The Im-

proper Impeachment Of The Defendant's

Witness, And The State Going Into Details Of

The Prior Conviction Of The Defendant's Wit-

ness Separately And Severally Rendered The

Proceeding A Travesty Of Justice And A

Mockery Of Fundamental Fairness. ..........

A. Petitioner Was Denied Due Process of Law

And A Fair and Impartial Tribunal By

the State of Alabama’s Admission of a

Tape Recorded Conversation Allegedly Be-

tween the Defendant and a Confidential

Informal. occ cckiuecen cee

bh. Faeeth is xsacone nee eee

2. Deprivation of Due Process And A Fair

And Impartial Tribual by Denial of De-

fendant’s Objection to the Admissibility

of the Tape Recorded Conversations. ..

a nN ek et Be ee Ee PA Wa wy or yu ee

oo 2S &. @& @'S-6 SO oS 6 414 Ci

TABLE OF CONTENTS — (Continued)

page

B. Petitioner Was Denied Due Process of Law

And A Fair And Impartial Tribunal By the

State of Alabama’s Improperly Using the

Prior Conviction of the Defendant's Witness

for Impeachment Purposes. ................. 10

Shee SaaS eS ire ee ae 19

2. Deprivation of Due Process And A Fair

And Impartial Tribunal By the Trial

Court’s Denial of the Defendant's Ob-

jection to the Improper Use of Prior

Convictions for Impeachment Purposes. ... 10

C. Petitioner Was Denied Due Process of Law

And A Fair And Impartial Tribunal By the

State of Alabama Improperly Going Into

Details of the Prior Conviction of the

Defendant's Witness. ...... Rie COREL chk « 1]

Se Ne ee 11

2. Deprivation of Due Process And A Fair

And Impartial Tribunal By the Trial

Court Overruling the Defendant's Ob-

jection to the State Going Into Details of

the Prior Convictions of the Defendant's

rn Orr gn as ale Cok yw wa we 1]

Ck ohne eth be esas nd kan ee eke 12

IV

TABLE OF AUTHORITIES

Cases: Pages

California v. Trombetta, 467 U.S. 479 (1984) ............ 9

Chillous v. State, 405 So.2d 58 (Ala.Cr.App. 1981) ...... 8

Conley v. State, 354 So.2d 1172 (Ala.Cr.App. 1977) ..... 1]

Favor v. State, 389 So.2d 556 (Ala.Cr.App. 1980) ....... 1]

Fikes v. State, 263 Ala. 89, 81 So.2d 303 (1955)

rev'd on other grounds, 352 U.S. 191, 77 S.Ct. 281,

Bm. ss fy erry ee Tre eee 6

Gholston v. State, 338 So.2d 454 (Ala.Cr.App. 1976) ..... 10

In re Murchison, 349 U.S. 133 (1955) .................. i]

Joint Ant-Fascist Committee v. McGrath,

Pe ae RU I oon oc ee DAK EAAw RECS R Chen nas ates se]

Marshall v. Jerrico, Inc., 446 U.S. 238 (i980) ............ 9

McElroy’s Alabama Evidence, Section 145.01(9),

Section 145.01(11) (3d Ed. 1977) ................ 10, 11

McIntosh v. State, 443 So.2d 1283 (Ala. 1983) ........... 10

Neary v. State, 469 So.2d 1321 (Ala.Cr.App. 1985) ...... 10

Voudne v. State, 387 So.2d 248 (Ala.Cr.App.)

cert. denied, 387 So.2d 257 (Ala. 1980) ............... 6

Walker v. State, 416 So.2d 1083 (Ala.Cr.App. 1982) ..... 6

White v. State, 347 So.2d 566 (Ala.Cr.App. 1977) ....... ll

Woods v. State, 367 So.2d 982 (Ala. 1978) .............. 8

Wynn v. State, 423 So.2d 294 (Ala.Cr.App. 1982) ....... ll

Censtitutional Provisions:

The United States Constitution,

an oe ie ood 2

The United States Constitution,

RAEN MORRELL Pan ee EA Nee Migs! 2

TABLE OF AUTHORITIES — (Continued)

Statutes: Pages

Code of Alabama, (1975), Section 12-16-2323 ee ea ee ee 8

Code of Alabama, (1975), Section 12-21-162

In the

Supreme Court Of Che United States

October Term, 1989

KENNETH KEEL,

Petitioner

VS. :

THE STATE OF ALABAMA,

Respondent

PETTTION FOR A WRIT OF CERTIORARI TO THE

ALABAMA SUPREME COURT

Petitioner respectfully prays that a Writ of Certiorari issue

to review the Judgment of the Alabama Supreme Court on

June 16, 1989, denying review of the issues raised concern-

ing his conviction in this case, previously affirmed without

opinion by the Alabama Court of Criminal Appeals by

Judgment on March 17, 1989.

OPINIONS BELOW

Petitioner timely appealed his judgment of conviction and

sentence to the Alabama Court of Criminal Appeals. By

Judgment of March 17, 1989, the Alabama Court of Crimi-

nal Appeals affirmed his conviction and sentence without

opinion. Petitioner umely filedlan Application for Rehearing

in the Alabama Court of Criminai Appeals. This Application

for Rehearing was denied without opinion by the Alabama

Court of Criminal Appeals on April 14, 1989.

2

Petitioner tmely filed a Petition tor Writ of Certiorari to

review the Judgment of the Alabama Court of Criminal

Appeals in the Alabama Supreme Court. Tire Alabama

Supreme Court by order of June 16, 1989, denied the Writ

These orders appear in full in the Appendix hereto.

JURISDICTION

This Court's jurisdiction is invoked pursuant to 28 U.S.C.

Section 1257(3). This Peution was umely filed within sixty

days of the date of the Alabama Supreme Court's Judgment

and Order of June 16, 1989.

CONSTITUTIONAL PROVISIONS

The Fourteenth Amendment to the Unned States Con-

sutution provides in pertinent part:

“No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of its laws.”

The Sixth Amendment to the United States Constitution

provides in tull:

“In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be con-

tronted with witnesses against him, to have compul-

sory process for obtaining witnesses in his favor,

and to have the Assistance of Counsel for his

defense.”

5

STATEMENT OF THE CASE

The Petitioner was arrested on March 17, 1987, tor the

alleged sale of cocaine to aw undercover police officer on

February 5, 1987. This drug transaction was arranged by a

contidential informant who accompanied the undercover

officer, David Miller. (Vol. I, R-11 to R-20).' After the drug

sale took place, Deputy Miller turned the sample over to

Lieutenant Roy Harbin of the Gadsden Police Department,

Vice and Narcotics Division. (Vol. 1, R-19). Lt. Harbin

testified at trial that he observed the Petitioner, Kenneth

Keel, drive into the parking lot at the Midtown Warehouse

Grocery and park beside the vehicle that Deputy Miller

occupied. (Vol. 1, R-45). At trial the State used tape record-

ings allegedly made of the Defendant and the confidential

informant to setup a cocaine buy. The State attempted to use

the tape recordings to impeach and/or retresh the recollec-

tion of the Detendant. (Vol. 1, R-127, R-133). Detendant’s

counsel objected numerous umes to the use of the tapes for

iny purpose whatsoever. (Vol. 1, R-128, R-130, R-I31,

R-132, R-133, R-134, R-148, R-502, R-548, R-156, R-161 to

l64, R-174, R-186, R-188, R-190, R-193, R-197). The tral

court, however, overruled the Defendant's objection, and

allowed the tape recording to be played. (Vol. 1, R-174). The

State atlempted to unpeach the Defendant's witness, Claude

Lynn Mabrey, by showing that he had been convicted of a

crime involving moral turpitude. (Vol. I, R-100 to R-102).

he State also went into the particulars of Mr. Mabrey’s

conviction over the objection of the Defendant. (Vol. I,

R-100 to R-102). The trial court overruled the Defendant's

objection and allowed the State to cross-examine Mr. Mabrey

as to specific acts of misconduct. (Vol. I, R-101). The

Petiuoner raised the above issues tn briets before the

\labama Court ot Criminal Appeals and the Alabama Su-

preme Court. (Appendix hereto).

‘The record in this case consists of a two volume Ural transcript, exhibits

and pleadings numbered sequentially. This Petttoner reters to the trial

record as “Re. Where materials reterenced also appear im the Appendix to

this Petition, that tact is noted

4

REASONS FOR GRANTING THE WRIT

I. Petitioner Was Egregiously Denied Due Process Of Law

And The Right To A Fair And Impartial Tribunal

Throughout The State Of Alabama’s Criminal Proceed-

ing Against Him. Specifically, The Admission Of Tape

Recorded Conversations Allegedly Between Fhe Defen-

dant And A Confidential Informant, The Improper

Impeachment Of The Defendant’s Witness, And The

State Going Into Details Of The Prior Conviction Of The

Defendant’s Witness Separately And Severally Rendered

The Proceeding A Travesty Of Justice And A Mockery

Of Fundamental Fairness.

Petitioner submits that the record is clear that he was

egregiously deprived of fundamental constitutionally pro-

tected rights throughout the course of the criminal pro-

ceeding against him in the Circuit Court of Etowah County,

Alabama. Specifically, Petitioner asserts three points in the

State of Alabama’s proceeding against him, at which sub-

stantial deprivation of the constitutionally assured rights

occurred: 1) at trial in the failure of the trial court to sustain

the Defendant's objection to the admissibility of a tape

recorded conversation aliegedly between the Defendant and

a confidential informant; 2) during trial by the court’s failure

to sustain the Defendant's objection by the State’s attempt to

impeach the Defendant’s witness by showing that he had

been convicted of a crime involving moral turpitude;

3) during trial by the court's failure to sustain the Defen-

dant’s objection to the State’s going into details of the prior

conviction of the Defendant's witness. Petitioner submits that

each of these three instances represents a significant depri-

vation of his constitutional rights and each merits this Court's

granting of the Writ. Petitioner also submits that each

instance, as a strand in the whole, combines to form a

proceeding that is constitutionally unacceptable and sup-

ports the granting of this Writ.

5

A. Petitioner Was Denied Due Process of Law And The Right To A

Fair And Impartial Tribunal By the State of Alabama’s Use of

Tape Recorded Conversations Allegedly Between the Defendant

and a Confidential Informant.

1. Facts

On February 5, 1987, the Gadsden Police Department,

using a confidential informant, allegedly made a purchase of

cocaine from the Defendant in the parking lot of a Gadsden

grocery store. The informant, who was later revealed to be

Claude Lynn Mabrey, came to police headquarters on the

afternoon of February 5, 1987, and informed Lt. Roy Harbin

that he had arranged to buy some cocaine from the Defen-

dant. (Vol. 1, R-40 to R-42). Two or three days before the

date of the alleged transaction, Mr. Mabrey had made taped

telephone calls to the Defendant from police headquarters.

The recording device on which the two phone conversations

were made was kept on Lt. Harbin’s desk in the Vice and

Narcotics Office at the police department. (Vol. I, R-179). At

the time the recordings were made, the office was used by

Otiicer Nessler, and two other full time officers with the

police department. At the time that Mr. Mabrey made the

phone calls, the recording device was new, and had not been

used before. (Vol. I, R-182). The particular tape in question

contained telephone conversations recorded over a thirteen

month period in various cases. (Vol. I, R-180). No contem-

poraneous records were kept, nor was a log of transactions

maintained. (Vol. I, R-146). Other recordings were made on

the same tape over the thirteen month period, and other

people had access to the tape and recording equipment. (Vol.

I, R-147, R-178 to R-180).

Because the State failed to lay the proper predicate for the

admission of the tape, the trial court erred in overruling the

Defendant's objection to it being used. In addition, the tape

is untrustworthy because of the thirteen month period when

it was accessible to other people, and not shown to have been

protected from error or spoliation.

6

2. Deprivation of Due Process And The Right To A Fair And

Impartial Tribunal By Admitting a Tape Recording Without

the Proper Predicate Being Laid.

Sound recordings are admissible only if a proper founda-

tion has been laid for their admission. Voudrie v. State, 387

So.2d 248 (Ala.Cr.App.) cert. denied, 387 So.2d 257 (Ala.

1980). Guidelines for testing the admissibility of sound

recordings was outlined in Voudnie, supra.

1. A showing that the recording device is capable of taking

testimony.

2. A showing that the operator of the device was compe-

tent.

3. Establishment of the authenticity of the recording.

4. A showing that change, deletions, or additions have not

been made.

5. A showing of the manner of preservation of the re-

cording.

Identification of the speakers.

A showing that the testimony elicited was voluntarily

made without any kind of inducement.

SD

Proper safeguards must also be “shown to have been used

as to protect the recording against error or spoliation and the

speakers recorded are properly identified and adequate

safeguards are taken to insure authenticity.” Walker v. State,

416 So.2d 1083 (Ala.Cr.App. 1982), citing Frkes v. State, 263

Ala. 89, 81 So.2d 303, 311 (1955) rev'd. on other grounds, 352

U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957).

The State attempted to use the tape recordings to impeach

and/or refresh the recollection of the Defendant. (Vol. I,

R-127, R-133). The trial court overruled the Defendant's

objection and ailowed the tape recording to be played. (Vol.

I, R-174). Although the State attempted to lay a predicate, it

failed to meet the requisites of Voudrie, supra. Specifically, the

State tailed to show: 1) that the recording was capable of

taking testimony; 2) that the operator was competent; 3) the

authenticity and correctness of the recording; and 4) that

changes, additions, or deletions had not been made. No

statement was ever made as to how the recorder worked, how

7

it was hooked up, or whether it was working properly. The

competency of the operator was never stated either. There is

no way. of knowing if or how the operator was trained to use

the equipment, or his experience in using it. One can only

draw an inference that since the tape recording equipment

was new, that the operator was relatively inexperienced in

using it. Because no contemporaneous records were kept,

(Vol. I. R-146), there is also no means of establishing the

authenticity or correctness of the recording, including any

changes, additions, or deletions that may have been made.

Sergeant Michael Nessler failed to keep a log of transactions

recorded on the tape. There is no indication who was called,

what date, or who dialed the number. We have only Sergeant

Nessler’s memory of what went on, and when. Therefore the

authenticity and correctness of the tape cannot be proven.

Although the State did show the manner of the preservation

of the recording, what they showed was inadequate, because

the tape in question stayed in the recorder for a thirteen

month period before it was ever placed in the sole custody of

Sergeant Michael Nessler. Other recordings were made on

the same tape over this thirteen month period, and other

people had access to the tape and recording equipment. (Vol.

1, R-147, R-178 te R-180). It was not, therefore, protected

against error or spoliation as required by Walker, supra.

Because the State failed to lay the proper predicate for the

adriission of the tape as required by Voudrie, supra, the trial

court erred in overruling the Defendant's objection to it

being used. In addition, the tape is untrustworthy because of

the thirteen month period when it was accessible to other

people, and not shown to have been protected from error or

spoliation as required by Walker, supra.

In this case, the State of Alabama’s admission of the tape

recording before a proper predicate had been laid, denied

the Defendant's right to due process and fundamental fair-

ness because the improper admission of the tape recording

was extremely prejudicial and inflammatory to the

Petitioner. No other procedural mechanisms were available

to the Petitioner during his trial after the court allowed the

admission of the tape recordings. In addition, the use of the

- 8

tape recordings at the Petitioner’s trial was extremely pre-

judicial and inflammatory to the Petitioner, and unfairly

biased the jury. It is an elementary component of due

process that an accused be denied of his liberty by the State,

only after a proceeding before a fair and impartial tribunal.

In this case, however, by allowing the introduction of the

improper tape recording, the State effectively denied the

Petitioner's right to a fair and impartial tribunal by biasing

and prejudicing the jury through the use of the improperly

admitted tape recording.

A wal court has authority under the Code of Alabama, 1975

Section 12-16-233, to enter a judgment of mistrial “when in

the opinion of the court or judge, there is a manifest

necessity for the discharge or when the ends of justice would

otherwise be defeated.” The trial court has wide discretion in

determining whether incidents occurring during the trial

affect the rights of the parties to a fair trial. Woods v. State,

367 So.2d 982 (Ala. 1978); Chilious v. State, 405 So.2d 58

(Ala.Cr.App. 1981). The trial court in this case, however,

abused its discretion by denying the Defendant’s motion for

a mistrial. (Vol. 1, R-196). Defendant’s counsel moved for a

mistrial after the trial court allowed the State to play the tape

recording of alleged conversations between the Defendant

and a cocaine buyer. (Vol. I, R-188 to R-196). Because of the

lack of credibility and improper predicate of the tape re-

cordings, the Defendant objected to the use and contents of

the recording as being immaterial, irrelevant, and misleading

to the jury. In addition, the contents of the tape were

inflammatory, and extremely prejudicial to the Defendant.

All the State presented was a tape of alleged phone calls

between the Defendant and a cocaine buyer with no indica-

tion or proof as to the dates of the calls, who the calls were

between, or what they were in reference to. They were

completely unreliable due to the fact that numerous calls

were recorded on the same tape over a thirteen month

period. The State presented the recollections of Sergeant

Nessler, who made no contemporaneous notes that the

conversations occurred at the times purported. This is not

enough, and once the jury heard the recording, the trial

9

court should have granted the Defendant's motion for a

mistrial. The contents of the tape were so prejudicial to the

Defendant, that once the jury heard it, they could not help

but be influenced by it. Even if the tape did not influence the

jury, if it might have unlawfully influenced the jury, a

mistrial should have been granted. Woods, supra. Because of

the manifest necessity in this trial, the ends of justice were

defeated by the denial of the mistrial. It is clearly established

by the due process clause that an accused has a right to an

impartial tribunal. As stated by Justice Black in Jn re Murchi-

son, 349 U.S. 133, 136 (1955):

A fair trial in a fair tribunal is a basic requirement of

due process. Fairness of course requires an absence

of actual bias in a trial of cases. But our system of

law has always endeavored to prevent even the proba-

bility of unfairness. (Emphasis added).

This constitutionally mandated requirement applies to both

civil and criminal cases, and has been described by this Court

as a “neutrality requirement in adjudicated proceedings.”

Marshall v. Jerrico, Inc., 446 U.S. 238, 243 (1980).

The neutrality requirement helps to guarantee that

life, liberty or property will not be taken on the basis

of an erroneous, distorted conception of the facts or

law. [See Mathews v. Eldridge, 424 U.S. 319, 344

(1976)]

At the same time, it preserves both the appearance and the

reality of fairness “generating the feeling so important to

popular government that justice has been done.” Joint Anti-

Fascist Committee v. McGrath, 341 U.S. 123, 172 (1951). By

playing the improperly admitted tape recordings to the jury,

the Petitioner was denied his right to due process and a fair

trial.

The Court has long recognized that due process requires

that criminal defendants be “aftorded a meaningful oppor-

tunity to present a complete defense.” California v. Trombetta,

467 U.S. 479, 485 (1984). This is precisely the opportunity

that was denied Petitioner by the trial court by allowing the

introduction of the tape recordings without a proper predi-

10

cate being laid. For these reasons, the Petitioner would

respectfully submit that the Writ is due to be granted, and his

convicuion reversed.

B. Petitioner Was Denied Due Process of Law And The Right To A

Fair And Impartial Tribunal By the State of Alabama’s Im-

proper Impeachment of the Defendant’s Witness.

l. Facts.

The State of Alabama attempted to impeach the Defen-

dant’s witness, Claude Lynn Mabrey, by showing that he had

been convicted of a crime involving moral turpitude. This is

allowed under the Code of Alabama, 1975, Section 12-21-162.

Mr. Mabrey, however, was not convicted of a crime involving

moral turpitude.

2. Deprivation of Due Process And The Right To A Fair and

Impartial Tribunal by the Improper Impeachmeni of the

Defendani’s Witness.

Conviction of a crime involving moral turpitude may be

used to impeach a witness under the Code of Alabama, 1975,

Secon 12-21-162. The State attempted to impeach the

Defendant's witness, Claude Lynn Mabrey, by showing that

he had been convicted of attempting to possess cocaine. (Vol.

I, R-83). Possession of cocaine is not a crime involving moral

turpitude, however, according to Gamble, McElroy’s Alabama

Evidence, Secuon 145.01(9), (3d Ed. 1977), only sales of

narcotics are crimes involving moral turpitude. Gholston v.

State, 338 So.2d 454 (Ala.Cr.App. 1976); McIntosh v. State,

443 So.2d 1283 (Ala. 1983); Neary v. State, 469 So.2d 132!

(Ala.Cr.App. 1985). Mr. Mabrey was convicted of possession,

and not selling narcotics, therefore, the State improperly

used his prior conviction for impeachment purposes. Be-

cause Mr. Mabrey was improperly impeached, the Petitioner

was denied due process and a fundamentally fair trial. For

these reasons, the Petitioner respectfully submits that this

Court should grant the Writ.

1]

\

C. Petitioner was Denied Due Process of Law And The Right To A

Fair And Impartial Tribunal By the State of Alabama Im-

properly Inquiring Into the Particulars of the Conviction of the

Defendant's Witness.

I. Facts.

The Detendant’s witness, Claude Lynn Mabrey, had been

convicted of attempting to possess cocaine. (Vol. I, R-83).

The State attempted to elicit facts and circumstances of Mr.

Mabrey’s conviction,

2. Deprivation of Due Process And The Right To A Fair And

Impartial Tribunal By the Trial Court's Improperly Allowing

the State of Alabama to go Beyond the Proper Line of

Questioning By Asking the Defendant's Witness Details About

His Conviction.

Eliciting facts and circumstances surrounding impeaching

convictions is inadmissible. Gamble, McElroy’s Alabama Ev:-

dence, Section 145.01(11), (3d 1977). Generally only ques-

tions involving the name of the crime, time and place of the

conviction, and the punishment imposed are proper. Wynn v.

State, 423 So.2d 294 (Ala.Cr.App. 1982); Favor v. State, 389

So.2d 556 (Ala.Cr.App. 1980); Conley v. State, 354 So.2d 1172

(Ala.Cr.App. 1977); White v. State, 347 So.2d 566

(Ala.Cr.App. 1977). The State, however, went beyond the

proper line of questioning by asking Mr. Mabrey about

details of his conviction. (Vol. I, R-100 to R-102). Defen-

dant’s counsel objected to the materiality and relevancy of

the line of questioning attempted by the State, but the trial

court overruled the objection. (Vol. I, R-101). The trial court

committed reversible error by allowing the State to cross

examine Mr. Mabrey as to specific acts of misconduct which

had no relevancy. The State was using the details to try to

show that Mr. Mabrey is a person of bad character as a whole.

This method of impeachment is not allowed under Alabama

law, and the trial court’s failure to sustain the defendant's

objection was reversible error.

The State, by being allowed to question the Defendant's

witness about partucular circumstances surrounding his prior

12

conviction, denied the Petitioner due process and a fair trial.

Defense counsel had already elicited the only facts and

circumstances admissible regarding the witness’ conviction.

Any futher questioning by the State of Alabama was im-

proper, and prejudiced the Petitioner's case and the jury

against the Petitioner to such an extent that he was denied

due process and the right to an impartial jury.

CONCLUSION

For these reasons, both separately and severally, and to

prevent a miscarriage of justice, Peutioner prays that a Writ

of Certiorari issue to review the Judgment of the Alabama

Supreme Court.

Respecttully submitted,

J. Wilson Dinsmore

Dinsmore, Waites & Stovall

Suite 100, The Age Herald |

Building

2107 Fifth Avenue, North

Birmingham, Alabama 35203 |

(205) 252-9751

OF COUNSEL:

David S. Luker

Tamera K. Erskine

Luker and Brewer

Barrister Hall

2205 Morris Avenue

Birmingham, AL 35203

(205) 251-6666

APPENDIX

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TABLE OF CONTENTS

Page

Ss CR INE, Satara nasc cases ecucees' A-1

A.

Decision of the Alabama Court of

Criminal Appeals, Keel v. State, 7 Div. 64

(March 17, 1989), Affirming Without

a ok caw as bei ean eewanancanaeds

Decision of the Alabama Court of

Criminal Appeals, Keel v. State, 7 Div. 64

(April 14, 1989), Overruling Applica-

| eee eee eee

Decision of the Alabama Supreme

Court, Kee! v. State, 88-968 (June 16,

1989), Denying Petition tor Writ of

Certiorari to the Court of Criminal

| errr rete Teer er eee ee

2. FEDERAL QUESTIONS RAISED BELOW

A.

Issue Concerning Denial of Due Process

and a Fair and Impartial Decision

RN ee OER Red ee eke ah

1. Appeal Briet to the Alabama Court

of Criminal Appeals, State of

Alabama v. Kenneth Keel, 7 Div.

Se oe Seay eee er ee ee

2. ‘Petition for Writ of Certiorari to the

Alabama Supreme Court, Ex parte

No ewees

vee A-1

ee A-3

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COURT OF CRIMINAL APPEALS

STATE OF ALABAMA

P.O. BOX 351

MONTGOMERY 36101

SAM TAYLOR MOLLIE JORDAN

Presiding Judge Clerk

JOHN C. TYSON, III (205) 261-4590

WILLIAM M. BOWEN, JR.

JOHN PATTERSON

H. WARD McMILLAN

judges

7th Div. 64 ETOWAH Circuit Court

CC 87-275-R

KENNETH KEEL, ALIAS vs. State of Alabama

Appellant Appellee

Dear Sir:

You are hereby notified that on March 17, 1989 the

following indicated action was taken in the above-styled

cause by the Court of Criminal Appeals of Alabama:

Notice of Appeal filed. Future correspondence

should refer to the above number.

Record on Appeal filed. Date of Certificate of Com-

pletion of Record on Appeal: '

As to briefs, see Rules 28, 31 and 32, A.R.A.P.

On motion, record of appeal accepted and consid-

ered as timely filed in this Court.

_____ Appellant granted seven (7) additional er to file

brief. Brief due on

Appellee granted seven (7) additional days to file

brief. Brief due on

Appellant granted seven (7) additional days to file

reply brief. Brief due on

Brief of Appellant filed.

Oral argument requested by appellant.

____— Reply brief filed.

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______ Oral argument request disallowed; appeal submitted

on briefs.

______ Appeal submitted to the Court for decision in the

following manner:

XXX_ Affirmed on appeal. No opinion. Judgment not final,

see Rules 40 and 41, A.R.A.P.

Appeal dismissed. No opinion.

Application for rehearing and Rule 39(k), A.R.A.P.,

mouon filed.

Application for rehearing filed.

Application for rehearing overruled. No opinion.

Judgment not final, see Rules 39 and 41, A.R.A.P.

Application for rehearing overruled. Rule 39(k),

A.R.A.P., motion denied. No opinion. Judgment not

final, see Rules 39 and 41, A.R.A.P.

Application for rehearing returned for non-

compliance with Rule 40, A.R.A.P.

Appeal placed on rehearing ex mero motu.

Certificate of final judgment issued to circuit clerk.

/s/ Mollie Jordan

CLERK

COURT OF CRIMINAL

APPEALS OF ALABAMA

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COURT OF CRIMINAL APPEALS

STATE OF ALABAMA

P.O. BOX 351

MONTGOMERY 36101

SAM TAYLOR April 14, 1989 MOLLIE JORDAN

Presiding Judge Clerk

JOHN ©. TYSON, HI (205) 261-4590

WILLIAM M. BOWEN, JR.

JOHN PATTERSON

H. WARD McMILLAN

Judges

7 Div. 64 ETOWAH Circuit Court

CC# 87-275-R

KENNETH KEEL, ALIAS vs. State of Alabama

Appellant Appellee

Dear Sir:

You are hereby notified that on April 14, 1989, the

following indicated action was taken in the above-styled

cause by the Court of Criminal Appeals of Alabama:

Notice of Appeal filed. Future correspondence

should refer to the above number.

Record on Appeal filed. Date of Certificate of Com-

pletion of Record on Appeal: '

As to briefs, see Rules 28, 31 and 32, A.R.A.P.

On motion, record of appeal accepted and consid-

ered as timely filed in this Court.

Appellant granted seven (7) additional days to file

brief. Brief due on

Appellee granted seven (7) additional days to file

brief. Brief due on

—_——— Appellant granted seven (7) additional days to file

reply brief. Brief due on

Brief of Appellant filed.

Oral argument requested by appellant.

Reply brief filed.

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_—____ Oral argument request disallowed; appeal submitted

on briets.

Appeal submitted to the Court for decision in the

following manner:

______ Affirmed on appeal. No opinion. Judgment not final,

see Rules 40 and 41, A.R.A.P.

_____ Appeal dismissed. No opinion.

_____ Applicauon for rehearing and Rule 39(k), A.R.A.P.,

mouon filed.

____— Application for rehearing filed.

XXX_ Application for rehearing overruled. No opinion.

Judgment not final, see Rules 39 and 41, A.R.A.P.

Application for rehearing overruled. Rule 39(k),

A.R.A.P., motion denied. No opinion. Judgment not

final, see Rules 39 and 41, A.R.A.P.

__.____ Application for rehearing returned tor non-

compliance with Rule 40, A.R.A.P.

Appeal placed on rehearing ex mero motu.

Ceruticate of final judgment issued to circuit clerk.

/s/ Molle Jordan

CLERK

COURT OF CRIMINAL

APPEALS OF ALABAMA

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JUN 16 1989

THE STATE OF ALABAMA

JUDICIAL DEPARTMENT

THE SUPREME COURT OF ALABAMA

OCTOBER TERM, 1988-89

Ex Parte: Kenneth Keel

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS

(Re: Kenneth Keel

88-968 v.

State of Alabama)

(Etowah Circuit Court, CC-87-275-R)

PER CURIAM.

The petitioner has not complied with Rule 39(k),

A.R.App.R., and no opinion was issued by the Court of

Criminal Appeals. On the authority of Ex parte Save Our

Streams, Inc., 541 So. 2d 549 (Ala. 1989), we will not issue the

writ of certiorari, and we express no opinion regarding the

merits of the petitioner's clains.

WRIT DENIED.

Hornsby, C. J., and Maddox, Almon, Adams, and Steagall,

JJ., concur.

A-6 .

IN THE

COURT OF CRIMINAL APPEALS

OF ALABAMA

7th DIV. 64

STATE OF ALABAMA

VS.

KENNETH KEEL

Defendant/Appeallant

Case No. CC87-275-R

Appealed from Etowah County Circuit Court

Sixteenth Judicial Circuit of Alabama

BRIEF OF APPELLANT

DAVID S. LUKER

ATTORNEY FOR APPELLANT

2205 Morris Avenue

Birmingham, Alabama 35203

Phone: (205) 251-6666

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ARGU MENT

ISSUE I

I. DID THE TRIAL COURT ERR IN OVERRULING

THE DEFENDANT'S OBJECTION TO THE ADMISSI-

BILITY OF TAPE-RECORDED CONVERSATIONS AL-

LEGEDLY BETWEEN THE DEFENDANT AND A CON-

FIDENTIAL INFORMANT?

Sound recordings are generally admissible as corrobora-

tive of oral testimony, if they contain relevant evidence.

Wright v. State, 38 Ala.App. 64, 72, 79 So.2d 66, 73, cert.

denied, 262 Ala. 420, 79 So.2d 74 (1954). However, sound

recordings are only admissible if the proper foundation has

been laid for their admission. Voudne v. State, 387 So.2d 248

(Ala.Cr.App.), cert. denied, 387 So.2d 256 (Ala. 1980); Gam-

ble, McElroy’s Alabama Evidence Section 123.02 (3d ed. 1977).

Guidelines for tesung the admissibility of sound recordings

was outlined in Voudnie, supra:

(1) a showing that the recording device was capa-

ble of taking testimony, (2) a showing that the

operator of the device was competent, (3) estab-

lishment of the authenticity and correctness of the

recordings, (4) a showing that changes, additions, or

deletions have not been made, (5) a showing of the

manner of the preservation of the recording,

(6) identification of the speakers, and (7) a showing

that the testimony elicited was voluntarily made

without any kind of inducement.

Proper safeguards must also be “shown to have been used so

as to protect the recording against error or spoliation and the

speakers recorded are properly identified and adequate

safeguards are taken to insure authenticity.” Wadker v. State,

416 So.2d 1083 (Ala.Cr.App. 1982), citing Fikes v. State, 263

Ala. 89, 81 So.2d 303, 311 (1955) rev'd. on other grounds, 352

U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957).

In this case, the State failed to lay the proper predicate to

use the tape recordings allegedly made of the Defendant and

a cocaine buyer. They are, therefore, inadmissible and the

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trial court is due to be reversed. The State attempted to use

the tape recordings to impeach and/or refresh the recollec-

tion of the Defendant, (Vol. 1-R-127, R-133). Defendant's

counsel objected numerous times to the use of the tapes for

any purpose whatsoever (Vol. 1-R-128, 129, 130, 131, 132,

133-134, 148, 150, 154, 156, 161-164, 174, 186, 188, 190,

193, 197). The trial court, however, overruled the Defen-

dant’s objection and allowed the tape recording to be played

(Vol. 1-R-174). Although the State attempted to lay a predi-

cate, it failed to meet the requisites of Voudne, supra. Speciti-

cally, the State tailed to show (1) that the recording device

was capable of taking.testimony, (2) that the operator was

competent, (3) the authenticity and correctness of the re-

cording, and (4) that changes, additions or deletions had not

been made. No statement was ever made as to how the

recorder worked, how it was hooked up, or whether it was

working properly. The competency of Sergeant Nessler was

never stated either. We have no way of knowing if or how he

was trained to use the equipment, or his experience in using

it. Because no contemporaneous records were kept, (Voi.

1-R-146), there is also no means of establishing the authen-

ticity or correctness of the recording, including any changes,

additions, or deletions that may have been made. Sergeant

Michael Nessler failed to keep a log of transactions recorded

on the tape. There is no indication who was called, on what

date or who dialed the number. There is no record of who

were the parties recorded or even what number was dialed.

We only have Sergeant Nessler’s memory of what went on

and when. Therefore, the authenticity and correctness of the

tape cannot be proven. Although the State did show the

manner of the preservation of the recording, what they

showed was inadequate, because the tape in question stayed

in the recorder for a thirteen-month period before it was

ever placed in the sole custody of Sergeant Michael Nessler.

Other recordings were made on the same tape over this

thirteen-month period, and other people had access to the

tape and recording equipment, (Vol. 1-R-147 and R-178 to

R-180). It was not, therefore, protected against error or

spoliation as required by Walker, supra.

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Because the State failed to lay the proper predicate for the

admission of the tape as required by Voudrie, supra, the trial

court erred in overruling the Defendant's objection to it

being used. Further, the tape is untrustworthy because of the

thirteen-month period when it was accessible to other people

and not shown to have been protected from error or spolia-

tion as required by Walker, supra. The trial court is, therefore,

due to be reversed.

ARGUMENT

ISSUE II

ll. DID THE TRIAL COURT ERR BY FAILING TO

GRANT THE DEFENDANTS MOTION FOR A MIS-

TRIAL?

A trial court has authority under Code of Alabama, Section

12-16-233 (1975) to enter a judgment of mistrial “when, in

the opinion of the court or judge, there is a manifest

necessity for the discharge or when the ends of justice would

otherwise be defeated.” The trial court has wide discretion in

determining whether incidents occurring during the trial

affect the rights of the parties to a fair trial. Woods v. State,

367 So.2d 982 (Ala. 1978); Chillous v. State, 405 So.2d 58

(Ala.Cr.App. 1981). The trial court in this case, however,

abused its discretion by denying the Defendant's motion for

a mistrial (Vol. 1-R-195). Defendant’s counsel moved for a

mistrial after the trial court allowed the State to play a tape

recording of alleged conversations between the Defendant

and a cocaine buyer (Vol. 1-R-188 to 196). No proper

predicate was laid for the use of the tape recordings, so its

authenticity is doubtful. Because of this lack of credibility

and improper predicate, the Defendant objected to the use

and content of the recording as being immaterial, irrelevant

and misleading to the jury. In addition, the contents of the

tape were inflammatory and extremely prejudicia! to the

Detendant. All the State presented was a tape of alleged

phone calls between the Defendant and a cocaine buyer, with

no indication of proof as to the dates of the calls, who the

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calls were between, and what they were in reference to.

Sergeant Nessler did not make a log of the phone calls and

there is no way to determine when the calls were made or

who they were to. This is completely unreliable due to the

fact that numerous calls were recorded on the same tape over

a thirteen-month period. The State just presented a recollec-

tion of Sergeant Nessler, who made no contemporaneous

notes, that the conversations occurred at the time he says

they did. This is not enough, and once the jury heard the

recordings, the wial court should have granted the Defen-

dant’s motion for mistrial. The contents of the tape were so

prejudicial to the Defendant that once the jury heard it, they

could not help but be influenced by it. Even if the iape did

not influence a juror, if it might have unlawfully influenced «

juror, a mistrial should have been granted. Woods, supra.

Because of the manifest necessity for the mistrial, the irial

court is due to be reversed. Otherwise, the ends of justice

would be defeated.

ARGUMENT

ISSUE III

Il. DID THE TRIAL COURT ERR BY OVERRULING

THE DEFENDANT'S OBJECTION TO THE STATE

GOING INTO DETAILS OF THE PRIOR CONVICTION

OF THE DEFENDANT'S WITNESS?

The State attempted to impeach the Defendant's witness,

Claude Lynn Mabrey, by showing he had been convicted of a

crime involving moral turpitude. This is allowed under Code

of Alabama, Section 12-21-162 (1975). Mr. Mabrey, however,

was convicted of attempting to possess cocaine (Vol. 1-R-83).

That is not a crime involving moral turpitude according to

Gamble, McElroy’s Alabama Evidence, Section 145.01(9) (3d

ed. 1977). Only sales of narcotics are crimes involving moral

turpitude. Gholston v. State, 338 So.2d 454 (Ala.Cr.App.

1976); McIntosh v. State, 443 So.2d 1283 (Ala. 1983); Neary v.

State, 469 So.2d 1321 (Ala.Cr.App. 1985). Because Mr.

Mabrey was convicted of possession and not selling narcotics,

A-11

the State improperly used his prior conviction for impeach-

ment purposes.

The State also went into the particulars of Mr. Mabrey’s

conviction over the objection of the Defendant. Particulars of

the impeacing conviction are inadmissible. Gamble, McElroy’s

Alabama Evidence, Section 145.01(11) (8d ed. 1977). Gener-

ally, only questions involving the name of the crime, time and

place of the conviction and the punishment imposed are

proper. Wynn v. State, 423 So.2d 294 (Ala.Cr.App. 1982);

Favor v. State, 389 So.2d 556 (Ala.Cr.App. 1980); Conley v.

State, 354 So.2d 1172 (Ala.Cr.App. 1977); White v. State, 347

So.2d_ 566 (Ala.Crim.App. 1977). The State, however, went

beyond the proper line of questoning by asking Mr. Mabrey

about details of his conviction (Vol. 1-R-100 to 102). Defen-

dant’s counsc! objected to the materiality and relevancy of

the line of questioning, but the trial court overruled the

objection (Vol. 1-R-101). The trial court committed reversi-

ble error by allowing the State to cross-examine Mr. Mabrey

as to specific acts of misconduct which have no relevancy.

The State was using the details to try to show that Mr.

Mabrey is a person of bad character as a whole. This method

of impeachment is not allowed under Alabama law. Gamble,

McElroy’s Alabama Evidence, Section 140.01(10) (3d ed. 1977);

Turner v. State, 380 So.2d 393 (Ala.Crim.App. 1980). The

trial court’s failure to sustain the Defendant's objection,

theretore, is reversible error.

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IN THE

SUPREME COURT OF ALABAMA

a4.. MOA

EX PARTE:

KENNETH KEEL,

Petitioner,

IN RE:

KENNETH KEEL,

Appellant,

VS.

THE STATE OF ALABAMA

Appellee.

ON APPEAL FROM THE

ETOWAH COUNTY CIRCUIT COURT

SIXTEENTH JUDICIAL CIRCUIT OF ALABAMA

(CASE NO. CC 87-275-R)

PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE

COURT OF CRIMINAL APPEALS OF ALABAMA

(7 Div. 64)

DAVID S. LUKER

ATTORNEY FOR APPELLANT

2205 Morris Avenue

Birmingham, AL 35203

(205) 251-6666

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TO THE HONORABLE CHIEF JUSTICE AND HONOR-

ABLE ASSOCIATE JUSTICES OF THE SUPREME

COURT OF ALABAMA:

Comes now your Petitioner, Kenneth Keel, by and

througa his undersigned attorney, and petitions this Honor-

able Court for a Writ of Certiorari to issue to the Honorable

Court of Criminal Appeals of Alabama in the above styled

cause pursuant to Rules 39 and 41 of Alabama Rules of

Appellate Procedure, and as grounds therefore, shows the

following:

1. That the Petitioner was convicted of the unlawful sale

of controlled substances, a violation of the Code of Alabama,

(1975), Section 20-2-70 in Case No. CC 87-275-R. The

Petitioner was sentenced to twelve (12) years in the peniten-

tiary, a Two Thousand Five Hundred Dollars ($2,500.00)

fine, Five Hundred Dollars ($50@.00) to the Victim Crime

Assessment Fund, and One Hundred Dollars ($100.00)

restitution. The Court of Criminal Appeals affirmed the

Petitioner's convicuon on March 17, 1989, without opinion.

The Petitioner filed an Applicauon for Rehearing pursuant

to Rules 39, 40 and 41 of the Alabama Rules of Appellate

Procedure on March 29, 1989. The Court of Criminal Appeals

overruled the Petitioner's Application for Rehearing on

April 14, 1989, without opinion.

2. A copy of the opinion of the intermediate Appellate

Court is attached to this Petition, which shows the Court of

Criminal Appeals number to be 7th Division 64 (see Exhibit

A, attached hereto).

3. Pursuant to Rule 40 of the Alabama Rules of Appellate

Procedure, and the decision of the Court of Criminal Appeals

in Cox v. State, 380 So.2d 584 (Ala.Cr.App. 1980}, Keel

resubmitted his original brief for consideration in support of

his Application for Rehearing by reassigning the issues of the

denial of a tair trial based on the improper admission of a

tape recorded conversation allegedly between the Defendant

and a confidential informant, and of the State improperly

going into the details of the prior conviction of the Deten-

dant’s witness.

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4. Pursuant to the Alabama Rules of Appellate Procedure, the

Petitioner tiled an Application for Rehearing assigning two

errors by the intermediate Appellate Court and attached

Additional Argument in his Application for Rehearing.

5. The basis of the Petition is as follows:

A.

Pursuant to Rule 39(c)4 of the Alabama Rules of Appellate

Procedure, the Petitioner asserts that the issues raised in

Section I of his Brief on Appeal, but not addressed by the

intermediate Appellate Court, because of the affirmance

without opinion, is in direct conflict with opinions of the Court

of Criminal Appeals in Voudrie v. State, 387 So.2d 248

(Ala.Cr.App.), cert. denied, 387 So.2d 256 (Ala. 1980); Walke)

v. State, 416 So.2d 1083 (Ala.Cr.App. 1982); and McElroy’s

Alabama Evidence, Section 123.02 (3d ed. 1977).

In this case, the State failed to lay the proper predicate to

use a tape recorded conversation allegedly made between the

Defendant and the cocaine buyer. The Defendant's counsel

objected numerous times to the use of the tape for any

purpose whatsoever. The trial court overruled the Deten-

dant’s objection, and allowed the tape recording to be played.

The tape recording was overall of poor quality, and the same

tape was used over a thirteen (13) month period to record

other phone conversations. Although the State attempted to

lay a predicate, it failed to meet the requisites of Voudnie,

supra. Specifically, the State failed to show:

1. That the recording device was capable of taking tes-

timony,

2. that the operator was competent,

3. the authenticity and correctness of the recording, and

4. that changes, additions or deletions had not been made.

The State never attempted to show how the recorder

worked, how it was hooked up, or whether it was working

properly. No extemporaneous records were kept, nor was

the competency of the operator ever shown. There was no

log to show what transactions were recorded on the tape, no

indication of who was called, on what date, or who dialed the

A-15

number. In several places, it was inaudible, and had to be

listened to two or three times before it could be understood.

The Petitioner asserts that he was prejudiced by the intro-

duction of this tape because the State failed to lay the proper

predicate, or meet the requisites of Voudrie, supra. This cause

is, therefore, due to be reversed and remanded.

Bb.

Pursuant to Rule 39(c)(4) of the Alabama Rules of Appellate

Procedure, the Petitioner asserts that the issue raised on

appeal in Section III of his Brief, but not addressed because

of the affirmance without opinion, is in direct conflict with the

decisions in Gholston v. State, 338 So.2d 454 (Ala.Cr.App.

1976); McIntosh v. State, 443 So.2d 1283 (Ala. 1983); Neary v.

State, 469 So.2d 1321 (Ala.Cr.App. 1985); Wynn v. State, 423

So.2d 294 (Ala.Cr.App. 1982); Favor v. State, 389 So.2d 556

(Ala.Cr.App. 1980); Conley v. State, 354 So.2d 1172

(Ala.Cr.App. 1977); White v. State, 347 So.2d 566

(Ala.CR.App. 1977); and McElroy’s Alabama Evidence, Section

145.01(9) and (11) and Section 140.01(10) (3d ed. 1977).

The State attempted to impeach the Defendant's witness,

Claude Lynn Mabrey, by showing that he had been convicted

of a crime involving moral turpitude. This is allowed under

the Code of Alabama, (1975), Section 12-21-162. Mr. Mabrey,

however, was convicted of attempting to possess cocaine,

which is not a crime involving moral turpitude, according to

McElroy’s Alabama Evidence, Section 145.01(9) (3d ed. 1977).

Only sales of narcotics are crimes involving moral turpitude,

possession is not. Because Mr. Mabrey was convicted of

possession, and not selling, the State improperly used his

prior conviction for impeachment purposes.

The State also went into the particulars of Mr. Mabrey’s

convictions over the objection of the Defendant. Particulars

of the impeaching conviction are inadmissible according to

McElroy’s Alabama Evidence, Section 145.01(11) (3d ed. 1977).

Generally, only questions involving the name of the crime,

the time and place of the conviction, and the punishment

imposed are proper. The State went beyond this proper line

A-16

of questioning by asking Mr. Mabrey details about his

conviction. The Defendani’s counsel objected to the mate-

riality and relevancy of this line of questioning, but was

overruled by the trial court. The trial court, therefore,

admitted reversible error by allowing the State to cross-

examine Mr. Mabrey as to specific acts of misconduct, and by

using details to show that Mr. Mabrey was a person of bad

character as a whole. Because this method of impeachment is

not allowed under Alabama law, the Defendant’s conviction

is due to be reversed and remanded.

WHEREFORE, above premises considered, the Petitioner

respectfully prays that the Writ of Certiorari be granted, and

that this Honorable Court proceed under its rules to review

the matters complained of, and to reverse the judgment of

the Court of Criminal Appeals; that this Court exercise its

superintendent authority over the intermediate Appellate

Court to review the law as applied to the facts pursuant to the

Alabama Rules of Appellate Procedure, and to exercise this

Court’s responsibility to review the erroneous treatment of

the Petitioner’s properly raised Constitutional issues omitted

by the intermediate Appellate Court. The Petitioner prays

for such other relief as to which he may be entitled.

I hereby certify that | have served copies of this Petition

and the Brief in support thereof as required by Rule 39(e),

Alabama Rules of Appellate Procedure, this the 28th day of

April, 1989.

RESPECTFULLY SUBMITTED:

/s/ David S. Luker

DAVID S. LUKER

ATTORNEY FOR PETITIONER

2205 Morris Avenue

Birmingham, AL 35203

(205) 251-6666

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CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the above and

foregoing Petition of Certiorari upon the Honorable Don

Siegeim:an, Attorney General for the State of Alabama, via

U.S. Mail, postage paid and properly affixed this the 28th

day of April, 1989.

/s/ David S. Luker

DAVID S. LUKER