Burnett v. State
| Decision Date | 13 October 1987 |
| Docket Number | 1 Div. 335 |
| Citation | 518 So.2d 235 |
| Parties | Malcolm D. BURNETT v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Karen A. Zokoff, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.
Appellant, Malcolm D. Burnett, was indicted in a fourteen-count indictment: the first six counts charged sodomy in the first degree, in violation of § 13A-6-63, Code of Alabama 1975; the next six counts charged sexual abuse in the first degree, in violation of § 13A-6-66; and the last two counts charged rape in the first degree, in violation of § 13A-6-61. Appellant entered pleas of not guilty and not guilty by reason of insanity. Prior to trial, a jury determined that appellant was competent to stand trial for the alleged offenses. Subsequently, appellant was tried before another jury, which convicted him of six counts of sodomy in the first degree (Counts I through VI), five counts of sexual abuse in the first degree (Counts VIII through XII), and one count of rape in the first degree (Count XIII). Regarding Count XIV, the jury found appellant not guilty of rape in the first degree, but found him guilty of attempted rape in the first degree. A judgment of acquittal was ordered by the court, on motion of appellant, as to one count of sexual abuse in the first degree (Count VII). The trial court sentenced appellant to life imprisonment on each conviction for sodomy in the first degree; ten years' imprisonment on each conviction for sexual abuse in the first degree; life imprisonment on the conviction for rape in the first degree; and twenty years' imprisonment on the conviction for attempted rape in the first degree. All sentences were ordered to run consecutively.
Appellant raises one issue on appeal. He does not question the sufficiency of the evidence to support his convictions; thus, we find it unnecessary to recite the facts in detail, and will only set out facts we deem necessary for an understanding of the issue raised. We have reviewed the evidence presented by the state and find that it was sufficient to support the jury's verdicts.
The state's evidence showed that appellant, who was over 60 years of age, picked up 6 young children after school and brought them to his residence, where he and his nephew, Lawrence C. Utley, 1 who was over 30 years of age, had them remove their clothing and caused the children to engage in various sexual acts with them and with each other. The children's ages ranged from five to ten years. The two older children were girls approximately ten years old, and the remaining four younger children were boys. All the children were present, in a group, during the sexual activity and had to either observe or participate in the sexual acts.
Appellant testified in his own behalf. He acknowledged that he knew the children and that they were in his residence; however, he denied abusing or molesting them. On behalf of his alternative defense, he presented Dr. Daniel L. Koch, a psychologist, to support his plea of insanity. Dr. Koch gave his opinion that, due to a mental illness at the time of the alleged offenses, appellant lacked the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.
On rebuttal, the prosecution called Dr. Norman G. Poythress, Jr., a psychologist employed by the state, who sharply disagreed with the opinion of Dr. Koch. Dr. Poythress testified that his examination of appellant did not disclose any mental illness or defect which would cause him to lack the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Rather, he opined that appellant was not suffering from a mental illness at the time of the commission of the alleged offenses. Dr. Poythress was also of the opinion that appellant understood the nature of the proceedings against him, was able to cooperate with his attorney, and was mentally competent to stand trial.
Appellant contends that the trial court erred to reversal in "admitting over timely objection evidence of a single prior act by defendant, during the state's case in rebuttal." An older sister of one of the female victims was called as a rebuttal witness by the state. 2 She was 15 years old, and she testified about an incident which involved her and appellant and which occurred approximately seven years prior to the time of the incident giving rise to the instant prosecution. Appellant's counsel, anticipating this testimony, objected to her being called as a witness, on the ground that her testimony would involve an incident that was too remote to be admissible since it occurred seven years earlier. He argued that the prejudicial value of her testimony far outweighed any relevance or materiality that it might have. His objection was overruled, and the witness was permitted to testify. Her testimony, in pertinent part, is as follows:
One of the victims had previously testified, in the state's case-in-chief, that appellant had killed a cat in the presence of the children and had told them that he would do that to them if they ever told their mother.
Appellant argues that the admission of the testimony of S.T. violated the general exclusionary rule prohibiting the introduction of evidence of crimes not charged in the indictment, which is stated as follows:
C. Gamble, McElroy's Alabama Evidence § 69.01(1) (3d ed.1977) (footnotes omitted).
Under Alabama law, evidence of any offense other than that specifically charged is prima facie inadmissible. Allen v. State, 380 So.2d 313 (Ala.Cr.App.1979), cert. denied, 380 So.2d 341 (Ala.), cert. denied, 449 U.S. 842, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980). However, Alabama law provides for the admission of evidence of collateral crimes or acts as part of the prosecution's case if the defendant's collateral misconduct is relevant to show his guilt other than by...
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Knight v. State
...evidence of Knight's prior acts of violence toward the victim to rebut his insanity defense. As we stated in Burnett v. State, 518 So.2d 235 (Ala.Crim.App.1987): "We find that the testimony was relevant to rebut appellant's insanity defense. We find in [Charles W. Gamble,] McElroy's [Alabam......