Brumback v. State

• Decision Date: 05 June 1979
• Docket Number: 6 Div. 807
• Parties: Terry Eugene BRUMBACK v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 999

371 So.2d 999

Terry Eugene BRUMBACK v. STATE.

6 Div. 807.

Court of Criminal Appeals of Alabama.

June 5, 1979.

Benjamin Daniel, Birmingham, for appellant.

William J. Baxley, Atty. Gen. and Barry V. Hutner, Asst. Atty. Gen., for the State.

DeCARLO, Judge.

This is an appeal by an indigent from a conviction of burglary of an inhabited dwelling in the nighttime, with the intent to ravish, wherein appellant was sentenced to fifteen years imprisonment. His judgment of conviction is before this court for review, for which appellant has been provided a free transcript and appointed counsel, who was also appointed to represent him at trial.

On October 25, 1977, the victim was living in a house located on Loch Haven Drive in Hoover, Jefferson County, Alabama, with her eleven-year-old son. She testified that, on the night in question, she had been out with her boyfriend, Larry Chandler, and that, after they returned, they watched television until approximately 11:45 P.M.

As her boyfriend left the house to go to his car, they heard the sound of footsteps on the road near her house. It was raining at the time her friend left and he told her that he would "circle around the block, to see if he could see anyone." She returned to the house, locked the front door and went to bed about 12:30 P.M.

At trial, the victim stated that the house had two rear doors which were locked on the night in question. She explained that the back doors also had "night locks," which were "(t)he kind where you have the chain."

The victim recalled that she was awakened around 4:00 A.M. and saw someone standing at her bedroom door. She stated that she "could tell from the shadow in the doorway that it was a man."

The victim gave the following account of what occurred next:

"I came up half-way out of bed and started to scream, and he kicked the door to and came over there, and, with one hand, he pushed me down on the bed and took the other one and put it over my mouth and told me not to scream. . . ."

She said that the man told her not to scream and that he would remove his hand if she promised she would not scream.

She stated that her assailant told her that he "didn't want to wake up the kid in the next room, and if I would do what he said do he wouldn't hurt me or the kid in the next room." Further, the victim said that the man told her that he was going to rape her.

She testified that she asked her assailant, "Let's talk; please, let's talk." At that point, the man let her sit up on the bed, but held her hand, and asked, "What do you want to talk about?" She said that she pleaded with him but that he told her, "There's been enough talk. That's enough."

The victim said that the man then told her to remove her clothes. When she started to remove her gown, she reached for a gun on the night-table on the left-hand side of the bed.

At trial, she described the gun as a .22 caliber, black with a white handle, bearing a "steerhead design on the handle." Further, she stated that "(i)t had about four bullets, I believe, in it. . . . They were twenty-two longs."

The victim went on to say that, as she reached for the gun, her assailant saw her reach for it, took the gun from her, pointed it at her and said, "now lady I mean business you understand." At that point, she was ordered to walk to the bedroom door and lock it.

She stated that, during the time the man was in the room with her, the room was completely dark and that, after she removed her gown, the appellant had sexual intercourse with her.

According to the victim, after her assailant had dressed, he pulled the bed linen over her head and said that he was going to turn on the light and make sure he had not left anything. The victim stated that, before leaving, her assailant told her he was going to check the house for fingerprints and that he was also going to take the telephone "off the hook." She said that, at that point, she asked her assailant what he was going to do with the gun and he responded that "he was going to take it with him."

She stated that she stayed in the bed until after she heard the door close. Then she got up, went to the den and replaced the telephone, returned to her bedroom and called her ex-husband. After "about fifteen minutes," her ex-husband arrived and called the police.

Later, Hoover uniformed police officers arrived at her home and, while they were there, the victim observed that the chain on the back door had been broken. She testified that, at that time, she also gave the police officers a description of her assailant, "as best I could."

The victim testified at trial that she could not make an identification of her assailant and said that she had never seen the appellant before.

At the conclusion of this statement, the district attorney directed the victim's attention to the 8th day of November, 1977. At that point, defense counsel requested a conference at the bench. Subsequently, the court dismissed the jury from the courtroom and testimony was taken on the appellant's motion to suppress, which he had filed prior to trial.

During the suppression hearing, the victim testified that, on November 8, 1977, around 11:00 P.M., she was at home with her boyfriend, Larry Chandler. She said that her son was in bed at that time, and that, while they were watching the television in the den, Chandler fell asleep on the floor. She said that she was lying on the couch but was not asleep.

She testified that she heard something outside, and stated, "I raised my head up off the pillow, and I heard just a jiggling sound at my back door and I could tell that somebody was coming in." At that point, Chandler, who had a pistol, was awakened and, when the door opened, he called out, "Halt, or I will shoot." According to the victim, the intruder ran from the house and Chandler chased him.

The victim testified that, when she talked with the police on October 25th or 26th, she gave them the description of the pistol that her assailant had taken. She stated that she also told them that "it had four bullets in it."

During voir dire cross-examination, she stated that she had talked to the police about the gun on the night of October 25th but that she did not know if she had given them a description of it that evening. However, she did state that her ex-husband had described the pistol to the police as a "twenty-two caliber."

Further, the victim stated that the statement by her ex-husband that the gun was "a twenty-two caliber revolver" was made to the police in her presence. But, she said, "I'm not sure I heard him say it was 'long'. . . . He could have said something about it." However, she acknowledged that she had not mentioned anything about the pistol being a "twenty-two caliber long," to Sgt. Ray, and added, "My husband talked to him about the gun because he said he knew more about it than I did."

Hoover Police Sgt. Don Ray testified that he had conducted an investigation of the assault on October 25, 1977. Ray also stated that the preliminary investigation was made by Sgt. French and Officer Beard.

Sgt. Ray testified that he recalled the victim telling him that a .22 caliber long pistol was taken from her possession on the night of the assault. He swore to that statement in the affidavit supporting the search warrant issued for the appellant's apartment. Ray stated that the victim's husband also told him about the pistol.

Further, Ray said it was his belief that the "Incident Report" made by the investigating officer described the pistol as a "twenty-two caliber." However, he was not sure, without looking at the report, whether the report also said "long."

Ray stated that, when the appellant was arrested on November 8th, he himself did not search the appellant, but it was his belief that the appellant was searched when he was placed under arrest by Sgt. French.

Ray stated it was his best recollection that, at the time of the arrest, Larry Chandler asked the appellant "there in the street, 'Why did you rape my girlfriend?' " The appellant's response was, "I didn't mean to harm her. I really didn't mean to hurt her."

Ray said that Larry Chandler and Sgt. French told him that the intruder had said "he did not mean to rape her." Ray said that this statement by the appellant was made in Officer French's presence.

Sgt. Tom French of the Hoover Police Department stated that, on November 8, 1977, he responded to a radio call and went to the victim's residence. He said that, when he got to the intersection of Loch Haven and Rocky Ridge Road in Hoover, Alabama, he stopped his patrol car and heard a man yelling, "Over here, over here."

French stated that, at that time, he saw two men on the ground and that one of the men was armed with a pistol and had his knee in the back of the other. French said he later learned that the man armed with the pistol was Larry Chandler and that he was holding the appellant at gun point.

French stated that he took the pistol from Chandler and then searched the appellant. According to French, when they picked the appellant up, Chandler came up to him and started yelling at the appellant. He wanted to know why the man had raped his girlfriend. French stated that the appellant's response was, "I didn't mean to harm her."

French said that he informed Sgt. Ray of Chandler's questions and the appellant's response. Further, French acknowledged that the appellant did not, in his presence, use the words, "I didn't mean to rape her."

French stated that the appellant had a billfold at the time he was searched and that French had turned the billfold, and the appellant's other personal effects, over to Sgt. Ray before taking the appellant to jail. French stated that, in the appellant's coat pocket, he found "two twenty-two caliber long bullets."

Larry Chandler testified that he was in the victim's house on the morning of November 8th and was awakened by the victim, who said, "This is it. He has come back." At that point,...