296 So.2d 892 (Ala. 1974), SC 823, Tillis v. State

• Date: 20 June 1974
• Citation: 292 Ala. 521,296 So.2d 892
• Docket Number: SC 823.
• Parties: Clarence Junior TILLIS, alias v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 892

296 So.2d 892 (Ala. 1974)

292 Ala. 521

Clarence Junior TILLIS, alias

v.

STATE of Alabama.

SC 823.

Supreme Court of Alabama.

June 20, 1974

Page 893

[292 Ala. 522] Kenneth R. Cain, Ozark, for appellant.

William J. Baxley, Atty. Gen., Montgomery and Jonathan P. Gardberg, Sp. Asst. Atty. Gen., Mobile, for the State.

FAULKNER, Justice.

The defendant, Tillis, was charged in a two-count indictment with rape, and burglary with intent to steal or commit rape. He was tried by a jury in the Coffee County Circuit Court and found guilty on both counts. Punishment was set by the jury at 56 years in the State penitentiary.

The facts surrounding this case are: On July 1, 1973, prosecutrix was alone at her home in Enterprise, Alabama, watching television in her living room, dressed in a blouse and underwear. She was seven months pregnant. At 12:00 or 12:30 A.M. she heard a noise in the back bedroom, to which she paid no attention, at first. When she turned from viewing the television[292 Ala. 523] set she observed a male in her living room door. He said nothing. He had a knife in his mouth. She started to scream, but he grabbed her and told her, 'Don't scream and I won't hurt you.' He tore off her underwear. In her struggle with him, her hand was cut. She told him she was pregnant and not to hurt her baby. He tried to have sexual relations with her in the living room but was unsuccessful. He suggested that they go to the back bedroom. There the act occurred. She testified she was frightened and in a state of shock when she went to the bedroom with Tillis. After he left she went to her mother's house and called the police.

One error alleged in this appeal is the denial of a motion for mistrial based on a remark made by the District Attorney. The record indicates the following took place:

'MR. HOLLIS: He says that in fact we have had two weeks to prepare for this case, Mr. Fuller has too. Where were his witnesses? Other than--

'MR. FULLER: We would object.

'THE COURT: Yes, sustain that.

'MR. FULLER: We move for a mistrial . . .

Page 894

'THE COURT: Gentlemen, you will not consider that. This is not evidence . . .'

From the record, it appears the remark was made in rebuttal to an earlier statement during argument of defense counsel that the State had ample time to prepare its case but the defense did not. The defense offered five witnesses who testified as to the good character of Tillis. The remark could have possibly been interpreted by defendant as a comment on his failure to take the stand in his own behalf or his lack of material evidence. In an appropriate context this is highly prejudicial and would require reversal. But, here the trial court sustained the objection and immediately admonished the jury not to consider the remark. In view of the indirect thrust of the remark and the prompt action of the trial judge, the remark was rendered 'innocuous.' Johnson v. State, 272 Ala. 633, 133 So.2d 53 (1961); Davis v. State, 259 Ala. 212, 66 So.2d 714 (1953); Massey v. State, 49 Ala.App. 341, 272 So.2d 267 (1972); Williams v. State, 43 Ala.App. 343, 190 So.2d 556 (1966). There was no error here.

At arraignment Tillis entered a not guilty plea. Six days later his court appointed counsel filed a motion for a sanity investigation. Title 15, § 428, Code of Alabama 1940, Recompiled 1958. The court, ex mero motu, had Tillis examined by a court appointed physician who declared him to be 'sane and of fair intelligence.' Motion for sanity investigation was denied. Tillis complains of errors surrounding the motion.

First, Tillis alleges that a plea of not guilty by reason of insanity does not present to the trial court an issue of mental competency at the time of the trial. However, the record does not show that Tillis entered a plea of not guilty by reason of insanity. He merely reserved the right to enter such plea. It is difficult to ascertain what error is being alleged.

The defendant contends that at no time was there a valid determination of his competency to stand trial and assist in his own defense. This raises several issues of paramount importance. In the case of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), the Supreme Court of the United States enunciated the rule that if a sufficient doubt as to the Present competency of the accused is made known to the trial court, then the court Must hold a hearing on the issue of competency to stand trial. The defendant is constitutionally entitled to such a hearing. The law in this State until very recently has been that it is in the complete discretion of the trial judge to implement any sanity investigation, whether under § 425, 426, or 428 of Title 15, Code of Alabama, [292 Ala. 524] 1940, Recompiled 1958. Numerous cases have in the past supported this proposition. See Seibold v. State, 287 Ala. 549, 253 So.2d 302 (1970); Ex Parte Bush, 247 Ala. 351, 24 So.2d 353 (1945); Burns v. State, 246 Ala. 135, 19 So.2d 450 (1944); Whitfield v. State, 236 Ala. 312, 182 So. 42 (1938); Rohn v. State, 186 Ala. 5, 65 So. 42 (1914); Granberry...