Blakely v. State
| Decision Date | 08 March 1977 |
| Docket Number | 6 Div. 243 |
| Citation | 344 So.2d 812 |
| Parties | Frederick L. BLAKELY, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
McCain & White, Tuscaloosa, for appellant.
William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
A jury found defendant guilty of an assault upon a named and identified woman with the intent forcibly to ravish her; the court sentenced him to imprisonment for fourteen years.
The victim, who the record indicates is a young lady in the most sublime sense of that word, was a student at the University of Alabama and was in the vicinity of a girls dormitory, where she roomed, about 9:00 P.M. Sunday, August 24, 1975, when she was suddenly and violently thrown into the front seat, on the passenger's side, of an automobile, by a man standing beside the automobile, whom she was never able to identify positively but who, she (white) said, was 'black' and 'kinda big, and he had big forearms.' In the driver's seat at the time was another black man; the victim could not identify defendant as either of the two men. She repulsed her assailant by directing her feet to his midsection and propelling her body toward him as he was getting in the automobile; she scrambled out of the automobile and freed herself. Her attacker then entered the automobile and closed the door. Others heard the commotion; the automobile drove away; police were on the scene almost immediately. The victim described the automobile as a dark Cadillac with a vinyl roof half-white and a National Guard tag on the car.
Within about half an hour after the attack, officers apprehended the defendant driving such an automobile in the vicinity of the crime. Officers recognized him as one who had been driving the same automobile in the vicinity of the crime a short while before the attack. There was another black male in the automobile at the time the automobile was stopped. Both were detained and questioned. Appellant said that he and the other man had been at a theater in downtown Tuscaloosa and had driven out to the University to see a friend. After being questioned and indicating no knowledge of any assault, they were released.
The victim of the assault lost a contact lens in the encounter. She reported this to the police, and soon after she had returned to her dormitory and had regained to some extent her composure, she and the officers went to the scene of the struggle and searched carefully for the contact lens, but it was not found.
On August 28, the automobile was searched at the place where appellant's wife worked, pursuant to a search warrant issued by an ex-officio judge of the Tuscaloosa County Court. There was evidence that prior to the crime the automobile had been bought by defendant from a member of the National Guard. The search warrant was served on appellant's wife. The search disclosed a contact lens on the front seat of the automobile.
Defendant offered no testimony on the trial of the case.
Many objections were made by defendant to questions relative to the identity of the contact lens. Appellant argues that an adequate chain of possession and custody of the contact lens was not shown by the evidence and that the court erred in overruling defendant's objection to the introduction of the lens into evidence. Appellant contends that there were two breaks in the chain of custody: (1) that there was no testimony that Ms. Michelle Minolie, who testified as to a lens, actually received the same lens that the police had found in the automobile, and (2) the lens was left lying on a counter in the court room, in the custody or possession of no particular person, while the trial court was adjourned for lunch, and was thereafter admitted in evidence. Officers Mills and Shaw of the University of Alabama Police Department, who found the lens in defendant's automobile, testified that thereafter the lens was placed in the evidence locker at the University Police Department, to which no one had access but such officers. They were intensively and extensively interrogated by attorneys, particularly defendant's attorney, as to the possibility that someone could have substituted another lends for the lens found in the automobile, but taking their testimony as a whole, there is no basis for any reasonable conclusion that such occurred. There was no other contact lens in the evidence locker. There was no evidence indicating that the contact lens was ever in the hands of anyone out of the presence of one of such officers, except perhaps the District Attorney or one of his assistants, for an examination of it about one week before trial, and perhaps the court reporter or some of the attaches of the court trying the case. Even the possibility of a substitute for, or a material change in, the lens between the time of its finding and its admission in evidence becomes infinitesimally small and remote in view of the nature and size of the object and of the difficulty of anyone's making a switch or change that would result in the making of such article to correspond with the lens made for the victim by her optician in another city. We find no error in the admission of the lens in evidence. To warrant the reception of an object in evidence against an objection that an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty, but only to a reasonable probability, that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain. Dennison v. State, 259 Ala. 424, 427, 66 So.2d 552; Mullins v. State, 56 Ala.App. 460, 323 So.2d 109; Jemison v. State, 40 Ala.App. 581, 120 So.2d 748.
Ms. Minolie was allowed to testify, over the objection of defendant that she was not properly qualified, as to the power and diameter of the contact lens introduced by the State into evidence. Ms. Minolie was employed by a Tuscaloosa ophthalmologist as a contact lens fitter and the operator of a lensometer. She had previously taught at Tuscaloosa High School; she had a B.A. degree from San Francisco State University. She was vigorously questioned by defense counsel and manifested by her answers that her testimony as to the power and diameter of the lens tested by her pertained to the particular work in which she was engaged and for which she was employed by the ophthalmologist. She did not testify on direct examination as to any matter out of the field of her employment. She unquestionably had acquired knowledge beyond that of ordinary witnesses on the subject as to which she testified. The objections to her testimony were not well taken. Daniel v. State, 31 Ala.App. 376, 17 So.2d 542; Bufkins v. State, 20 Ala.App. 457, 103 So. 902, cert. denied, Ex parte Bufkins, 212 Ala. 638, 103 So. 906; Reynolds v. State, 29 Ala.App. 139, 193 So. 192.
Appellant complains of two instances of action by the trial court in overruling defendant's motion for a mistrial by insisting that the trial court was in error in inquiring of the jury whether they were prejudiced by what had occurred. Appellant insists that whether a mistrial should be declared is the responsibility of the judge and not the jury. He is correct, but we do not consider that the trial judge was leaving to the jury a decision as to what the court should do. The record is to the contrary. As we view it, the record indicates that the question of the jury by the trial judge was in the nature of extra precaution on his part to assure a trial free of prejudice. It is clear that the trial judge ruled in accordance with his own opinion that no prejudice to defendant had occurred in either instance and that the motion for a mistrial should be overruled.
This brings us to the only remaining contention of appellant, an occurrence during the argument of counsel for the State as follows:
'MR. ANDRES: . . . Freddie Blakely knew exactly what was going on. They had planned it during the time they were at the moving seeing--I believe Jimmy Mills said 'Black Mamma White Mamma.' They probably decided while they were there at the movie and then drove down to the University and cruised around until they could . . .
'MR. McCAIN: Your Honor, we're going to object at this time and move for a mistrial on the grounds that Mr. Andres has stated the name of a movie that has not been put into evidence, possibly the prejudicial name of a movie.
'Absolutely no evidence has been put before this Court, and it's an obvious . . .
'THE COURT: Did one of the officers say he told them they had been to a movie?
MR. McCAIN: A movie, Your Honor.
'MR. McCAIN: We don't think an apology would clear this.
'THE COURT: Well, the motion is denied.
'The defense is due an exception to the Court's ruling.'
In a preceding portion of the argument of counsel for the State, he had said:
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...the chain of custody. Franks v. State, 45 Ala.App. 88, 224 So.2d 924; Lackey v. State, 41 Ala.App. 46, 123 So.2d 186. In Blakely v. State, Ala.Cr.App., 344 So.2d 812 (released by this Court on March 8, 1977), it was ". . . To warrant the reception of an object in evidence against an objecti......
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...was "black" were made for the purposes of identification and to show apprehension on the part of the witness. Compare Blakely v. State, 344 So.2d 812 (Ala.Cr.App.1977). We find no prejudicial racial motive or connotation in these remarks. Our finding is supported by the fact that there was ......
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...to whether the drawer containing the evidence was locked during his possession of the evidence. We think the case of Blakely v. State, Ala.Cr.App., 344 So.2d 812 (1977) answers this ". . . To warrant the reception of an object in evidence against an objection that an unbroken chain of custo......