Brooks v. State

• Decision Date: 13 October 1987
• Docket Number: 6 Div. 293
• Citation: Brooks v. State, 520 So.2d 195 (Ala. Crim. App. 1987)
• Parties: Jerry Wayne BROOKS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 195

520 So.2d 195

Jerry Wayne BROOKS v.STATE.

6 Div. 293.

Court of Criminal Appeals of Alabama.

Oct. 13, 1987.

Rehearing Denied Jan. 26, 1988.

Kenneth Weldon of Bland, Bland & Weldon, Cullman, for appellant.

Don Siegelman, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant, Jerry Wayne Brooks, was convicted of rape in the first degree and, following a habitual offender hearing, was sentenced to life imprisonment without parole.

The victim testified that she was 10 years old.She testified that she and her little sister were staying with her grandmother on the afternoon in question until her father arrived to take them home.The victim and her sister watched television when they arrived home, while her father lay on the couch.Her father then put her little sister outside to play and took the victim into his bedroom.The victim testified that her father made her remove her clothes and also took off his clothing.She testified that her father then got on top of her and hurt her "monkey."After he let her get up, she went to her bedroom and discovered that she was bleeding.She then took a bath and changed her clothing.She lay down on her bunk bed until her mother came home.She further testified that when her mother arrived home, her sister informed the mother that the victim was sick.The mother went in the victim's bedroom, pulled back the covers, and saw the blood on the bed.She took the victim and her sister to the hospital.The victim further testified that, when her father was on top of her, she was fighting and screaming.

The victim's sister testified that she was six years old.She testified that on the day in question, her father put her outside to play.She further testified that when she went inside, she saw blood in the bathroom and in the bedrooms.She testified that when her mother came home, she informed her that the victim was sick and they went to the hospital.

The victim's mother testified that when she arrived home on the day in question she noticed the blood on the towels and then went to her bedroom.The appellant was lying on his stomach across the bed.She testified that when she bent down to pick up her gown, she noticed blood on the bottom of the appellant's feet; she said she also had observed blood on the floor.She then went to the bathroom and there she observed "blood all over the bathroom" and noted that a pair of undershorts behind the door was "just drenched with blood."The victim's sister then informed her that the victim was sick.She walked over to the victim, pulled the covers back, and found her lying in a puddle of blood.She testified that when she observed where the blood was coming from, she took the victim to the hospital.She further stated that the victim referred to her private parts as her "monkey."

Dr. Jose Gonzalez testified that he was the emergency room physician when the victim was brought to the hospital.He testified that she was hysterical and cried each time he got close to her.He testified that the victim was bleeding vaginally, but he was unable to conduct any examination because she fought him.He testified that he attempted to sedate her but that she would wake up and start fighting again each time he touched her.He testified that when he was finally able to complete an extensive examination, he found a large clot of blood in the vagina as well as a laceration in the lower area of the vagina.Dr. Gonzalez testified that they were unable to stop the bleeding, so an obstetrician was called.Dr. Howard F. Williamson, a specialist in gynecology, testified that he examined the victim after she had been sedated.He testified that she had been bruised on the outside of the vagina; he said that there was a small tear at the opening and a long tear inside that was causing most of the bleeding.Dr. Williamson testified that "for those type injuries to have occurred there would have to be penetration of the vagina by an object approximately the size of a penis."The victim underwent surgery and remained in the hospital for two or three days.Dr. Williamson further testified that he conducted a follow-up procedure and determined that the victim had developed a herpes infection.

James Allison, of the Cullman County Sheriff's Department, testified that he went to the hospital to speak to the victim's mother.While there, he obtained a consent form to conduct a search of her house and property.A pair of men's shorts was recovered from the house and transported to the State laboratory for the Department of Forensic Sciences.Allison testified that the appellant was arrested ten days after the offense.The appellant was armed but made no attempt to resist arrest.

Roger Morrison, of the Alabama Department of Forensic Sciences, testified that he examined the shorts and found bloodstains on the outside and bloodstains, vaginal secretions, and some seminal fluid on the inside of the shorts.

The appellant testified that on the day in question he left for work at approximately 6:00 a.m. and, after working an hour, it began to rain so he and a friend began to drink.The appellant then drove to purchase beer and whiskey before returning home.He said he began working on his truck, and he testified that he failed to recall anything after that until he awoke the following morning in his truck at Lake Catoma.He testified that he was uncertain as to where he was or why he was there.He testified that he began to drink some of the beer in his truck, drove to a store, and telephoned his father.His father told him that a warrant had been issued against him for the rape of his daughter.The appellant testified that he did not recall harming the victim.He further testified that he is an alcoholic and has experienced total blackouts on several occasions in the past.He has never sought professional help for his drinking problem.

I

The appellant argues that the trial court erred in allowing the introduction of the shorts taken from his residence pursuant to a consent to search obtained from his wife.The appellant further alleges that the consent form was improper because it did not require the officers to look for any specific items, but rather amounted to "an illegal general exploratory search and seizure."

"The prevailing view in this country is that a wife, or other joint occupants of living quarters, may constitutionally give 'consent' to search the premises and a search warrant is not required."Myers v. State, 55 Ala.App. 404, 316 So.2d 235, 237(Ala.Cr.App.1975), and cases cited therein.

"It is well recognized that some third parties may validly consent to a search of premises or the effects of an absent defendant, if such third party shares with the defendant'common authority over or other sufficient relationship to the premises or effects sought to be inspected.'United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242(1974);Myers v. State, 55 Ala.App. 404316 So.2d 235(1975);Scott [v. State], 337 So.2d 1342(Ala.Cr.App.1976).Further, this court has held on numerous occasions that the wife of an absent defendant can validly consent to a search of the premises or effects of the defendant.Cobb v. State, 355 So.2d 741(Ala.Crim.App.1978);Liptroth v. State, 342 So.2d 959(Ala.Crim.App.), cert. denied, 342 So.2d 961(Ala.1977), cert. denied, 434 U.S. 869, 98 S.Ct. 210, 54 L.Ed.2d 147(1977);Mickens v. State, 428 So.2d 202(Ala.Crim.App.1983).See alsoJackson v. State, 414 So.2d 1014(Ala.Crim.App.1982);Bartlett v. State, 387 So.2d 886(Ala.Crim.App.), cert. denied, 387 So.2d 890(Ala.1980), cert. denied, 451 U.S. 1016, 101 S.Ct. 3004, 69 L.Ed.2d 388(1980);Cobb, supra."

Ballard v. State, 461 So.2d 899, 903-04(Ala.Cr.App.1984).

The appellant does not dispute that his wife gave a valid, voluntary, intelligent, and knowing consent for the search of their residence.Under the facts of this case, the appellant's wife had the authority to waive the warrant requirement and consent to the search.SeeWade v. State, 497 So.2d 593, 594(Ala.Cr.App.1986).

While it is true that the Fourth Amendment to the United States Constitution dictates that no warrants shall be issued except those "particularly describing the ... things to be seized," a consent to an illegal search is a waiver of the constitutional protection from unreasonable searches and seizures."General exploratory searches and seizures, with or without a warrant, can never be justified and are forbidden and condemned.Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231(1927)."Palmer v. State, 426 So.2d 950, 952(Ala.Cr.App.1983).The language of the consent to search form, to which the appellant's wife acquiesced, allowed the Sheriff's Department "to make a complete and detailed search of her house and property at the Fairview Community" and "[t]ake any contraband or property that is by law illegal to possess, or any property that is material evidence in a criminal case either against her or anyone else."However, "[w]hen a search is properly authorized by consent, its scope is governed by the terms of its authorization.Walter v. United States, 447 U.S. 649, 656-57, 100 S.Ct. 2395, 2401, 65 L.Ed.2d 410, 417(1980);United States v. Rackley, 742 F.2d 1266, 1271(11th Cir.1984)."Ex parte Hilley, 484 So.2d 485, 491(Ala.1985).See alsoLott v. State, 456 So.2d 857(Ala.Cr.App.1984).As the court wrote in Hilley,

"If one subjects his property to the exclusive or joint control of another, he assumes the risk that consent will be granted by the other to a search of the property."

Id. at 490.See alsoLiptroth v. State, 335 So.2d 683, 688(Ala.Cr.App.1976), writ denied, 335 So.2d 688(Ala.1976), Liproth v. Alabama, 429 U.S. 963, 97 S.Ct. 393, 50 L.Ed.2d 332(1976).The appellant's wife had the authority to consent and, in fact, consented to an expansive and complete search of the premises; thus, the admission of the...