Bowden v. State

• Decision Date: 16 December 1988
• Citation: 538 So.2d 1226
• Parties: Ex parte State of Alabama (Two Cases). (Re James Preston BOWDEN v. STATE). (Re Roosevelt WATSON v. STATE). 87-38, 87-40.
• Court: Alabama Supreme Court

Page 1226

538 So.2d 1226

Ex parte State of Alabama (Two Cases).

(Re James Preston BOWDEN v. STATE).

(Re Roosevelt WATSON v. STATE).

87-38, 87-40.

Supreme Court of Alabama.

Dec. 16, 1988.

Don Siegelman, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for petitioner.

William A. Short, Jr., Bessemer, for respondent Bowden.

J. Michael Williams, Sr., Auburn, for respondent Watson.

BEATTY, Justice.

We granted the State's petitions for writ of certiorari in these cases and have consolidated them to address the issues decided by the Court of Criminal Appeals in reliance upon, and in view of, this Court's decision in Anonymous v. State, 507 So.2d 972 (Ala.1987) (hereinafter referred to as "Anonymous "). In this opinion, we shall undertake to re-examine certain aspects of our decision in Anonymous. A brief summary of that decision follows.

The defendant in Anonymous was charged with and convicted of three counts of first degree rape and three counts of incest with one of his daughters, the prosecutrix, who was an adult at the time the alleged acts occurred. Over the defendant's objections, the prosecutrix was allowed to testify that the defendant had been sexually abusing her since she was five or six years old and that she had twice become pregnant by him, and that, on both occasions, he had forced her to have an abortion. The prosecutrix's sister, also an adult at the time of trial, was permitted to testify, over objection, that the defendant had sexually abused her since she was five or six years old and had repeatedly forced her to have sexual intercourse with him from the time she was 12 or 13 years old until she left home at age 17. She further testified that, like the prosecutrix, she had become pregnant by her father, the defendant, but that she gave birth to the child, a boy, who was 10 years old at the time of trial.

The Court of Criminal Appeals upheld the trial court's admission of the testimony by the prosecutrix and her sister concerning the history of forced sexual relations with the defendant. However, that court reversed and remanded the case, because it concluded that the testimony concerning the prosecutrix's pregnancies and abortions and the prosecutrix's sister's pregnancy and her giving birth to a son by the defendant, was inadmissible under Lee v. State, 246 Ala. 69, 18 So.2d 706 (1944). This Court granted the State's petition for writ of certiorari to consider the correctness of this latter determination by the Court of Criminal Appeals.

In its opinion, this Court stated the general exclusionary rule and reiterated the rationale behind it. We further recognized that "[t]his rationale notwithstanding," certain "other purpose" exceptions to this rule of exclusion exist, such as the accused's motive, intent, identity, or common plan, design, scheme, or system, in regard to all of which evidence may be introduced provided there is a real and open issue as to one or more of those "other purposes." Cofer v. State, 440 So.2d 1121 (Ala.1983). Applying the rule and its exceptions to the facts in Anonymous, we concluded that the Court of Criminal Appeals correctly determined that the evidence of the prosecutrix's pregnancy and her abortions and of the sister's pregnancy and resulting child was inadmissible. As to that evidence, we remarked: "There is simply no imaginable reason for the admission of this testimony other than to prove the defendant's bad character. This is, of course, not an acceptable purpose." 507 So.2d at 974.

The defendant did not file a cross-petition in Anonymous challenging the portion of the decision of the Court of Criminal Appeals upholding the admissibility of the prosecutrix's and her sister's testimony concerning their history of forced sexual relations with the defendant. However, we addressed ourselves to the correctness of that holding in response to the State's argument that, because evidence of the prosecutrix's and her sister's history of forced sexual relations with the defendant was admissible, so was the evidence relating to the resulting pregnancies and abortions (by the prosecutrix) and birth (by her sister). We concluded that the decision holding this evidence of their history of forced sexual relations admissible under the identity and intent exceptions to the general rule of exclusion was incorrect. We reasoned as follows:

"The identity of the person who actually committed the acts with which the defendant was charged was not at issue. The defendant did not argue that 'someone else committed the acts with which he was charged'; instead, he merely denied that the acts ever occurred. Therefore, because there was no 'real and open' issue concerning identity, the collateral acts could not be admissible as going toward such an issue. See Cofer, [440 So.2d 1121 (Ala.1983) ]; [Ex parte ] Killough, [438 So.2d 333 (Ala.1983) ].

"Neither can the 'intent' exception be applied in this case. Under §§ 13A-6-60 and -61, Code of 1975, rape in the first degree does not require any specific criminal intent. Similarly, no specific criminal intent, other than knowledge of relationship, is required under Code of 1975, § 13A-13-3, defining the crime of incest. The intent exception is simply not applicable in a case that requires no specific criminal intent as a prerequisite to conviction. See McElroy's, § 69.01(5) and cases cited therein. As was explained in Cofer, supra, any intent necessary to this type of crime could be inferred by the jury from the testimony about the act charged:

" 'This intent may be inferred by the jury from the act itself. Parker v. State, 406 So.2d [1036] 1039. [ (Ala.Cr.App.1981) ]. The prosecutrix testified that Cofer kissed her, removed some of her clothing, inserted his finger into her, and lay close to her. If the jury believed her testimony, it could infer that Cofer had the requisite intent and find him guilty of the offense. There is, therefore, no real and open issue about his intent, and the evidence of the prior rape was erroneously allowed to prove Cofer's intent.'

(Emphasis added.) 440 So.2d at 1124."

507 So.2d at 975. We further commented that, since there were no issues concerning the "intent" and "identity" exceptions to the general rule, "one cannot escape the conclusion that there exists no exception upon which the admissibility of the testimony concerning the prior sexual mistreatment of the defendant's daughters could be based." (Emphasis added.) 507 So.2d at 975.

It was in the wake of this Court's decision in Anonymous that the Court of Criminal Appeals decided the two cases sub judice. A brief recitation of the pertinent facts of each case and the issues arising therefrom follows.

In Bowden v. State, 538 So.2d 1224 (Ala.Crim.App.1987), the defendant, James Bowden, was convicted of the first degree rape of his minor daughter. At trial, the victim, who was then 15 years old, testified that, in addition to the incident for which the defendant was charged, he had made sexual advances toward her on numerous occasions in the past. The victim's 13-year-old sister was permitted to testify over objection that the defendant also had made sexual advances toward her around Christmas; however, she was uncertain of the year. On the authority of Anonymous, the Court of Criminal Appeals reversed the conviction and held that the testimony of the victim's sister was inadmissible.

In Watson v. State, 538 So.2d 1216 (Ala.Crim.App.1987), the defendant, Roosevelt Watson, was convicted of the first degree rape of one of his daughters under the age of 12. At trial, the victim's mother was permitted to testify over objection that her oldest daughter, the victim's sister, told her (the mother) that on two or three occasions the defendant had also forced her (the sister) to have sex with him and that he had impregnated her. The victim's mother also testified that, like the victim, the sister had indeed become pregnant, but that the child was stillborn on August 27 or 28, 1984, approximately one week before the victim's child was born on September 2, 1984. The Court of Criminal Appeals quoted the following excerpt from the mother's testimony as to her daughters' explanations of their pregnancies:

" 'Q. They told you how they got pregnant?

" 'A. Yes.

" 'Q. What did they say to you?

" '....

" 'A. They said that their father would come upstairs on nights that he stayed there at the house. He would come upstairs and get them and take them back downstairs and force them to lay down on the floor. And tell them that if they didn't that he would kill them.

" 'Q. Did they tell you how many times he forced them to do this?

" 'A. Yes. As many as two or three times each. [The prosecutrix's sister] said one night she was up in her bed asleep, and he came upstairs and got her and took her downstairs and forced her on the couch at gunpoint and had intercourse with her.' "

538 So.2d at 1218. The victim's mother further testified as follows concerning a scene or an incident she witnessed involving the defendant and the victim's sister:

" 'Q. Now, Ms. Watson; I asked you earlier about the date of March 22, 1983. Can you tell the jury what occurred on that day?

" 'A. Yes. I was downstairs--

" '[Objection interposed.]

" 'Q. Ms. Watson, can you relate what occurred on that day to the jury, please, ma'am?

" 'A. Yes. I was downstairs, down--we had an upstairs apartment. And I was downstairs. And I went upstairs to use the bathroom. And I saw Mr. Watson and my daughter Shirley in her bedroom. Mr. Watson had his pants below, down to his ankles, and Shirley was laying down in the bed.

" 'Q. Did Shirley have on any clothes?

" 'A. As far as I could tell, no.

" 'Q. Did you ask Mr. Watson what they were going at that time?

" 'A. Yes.

" 'Q. What did Mr. Watson say?

" 'A. He said that they were just playing, that it was nothing.

" 'Q. That they weren't doing anything?

" 'A. Yes.' "

538 So.2d at 1218.

The defendant argued on appeal that the trial...