Cady v. State
| Decision Date | 20 March 1984 |
| Docket Number | 4 Div. 160 |
| Citation | 455 So.2d 101 |
| Parties | Don Lamar CADY v. STATE. |
| Court | Alabama Court of Criminal Appeals |
L. Merrill Shirley, Elba, for appellant.
Charles A. Graddick, Atty. Gen. and Fred F. Bell, Asst. Atty. Gen., for appellee.
The following STATEMENT OF THE CASE is found in appellant's brief and is adopted in appellee's brief:
The alleged victim testified that she was 17 years old at the time of the trial. Her last birthday was during the month before the trial. The incident involved occurred approximately fourteen months before the trial, which means that the victim was 15 years of age, lacking a month or two of being sixteen years of age, at the time of the incident. The alleged victim was the only eyewitness who testified as to what occurred at the time and place of the incident. She testified that on the night of January 19, 1982, she and a girl friend had been to a ball game at the gym at Elba High School, and that after the game a friend of the two drove them to a house, and thereafter to another home. Continuing in her testimony, the alleged victim said that she went from home to home and after calling her mother she realized she had dropped her sock and she "went back to find it." Her testimony continued as follows:
didn't know the name, but he pointed away and I looked that way and about the time I looked he grabbed my neck.
The victim's testimony continued for several more pages of the transcript. We quote therefrom only such portions as are pertinent and perhaps material to the issues presented on appeal:
The first two issues presented by appellant are as follows:
The two issues presented as applied to this case are in conflict with each other. As shown in appellant's brief, the two issues pertain to the testimony of the alleged victim on direct examination which we have quoted above. By the first issue, appellant contends that the trial court erred in admitting testimony by the victim that penetration, "a material element of the charge," occurred. By the second issue, it is contended that the evidence fails to show a penetration. As to the first issue, we would have no difficulty in disposing of it adversely to appellant, if the witness had been a few years younger, as were the witnesses, fourteen years of age or younger in cases cited by Judge McElroy in the footnote to Gamble, McElroy's Alabama Evidence, § 121.05(8) (3d ed. 1977):
Even though the witness was older than the witnesses in the cases cited, we believe the nearness of the age of the witness in the instant case to the ages of the witnesses in the cited cases, whose answers to leading questions on direct examination were authoritatively approved, is a proper factor to be considered in this case; especially so, we think, because of the delicacy of the subject matter. Furthermore, we note that the question could have been definitely answered by "Yes" or by "No." Although the "yes" or "no" answer test is not a conclusive test, we are assisted by it, when applied to all the circumstances herein, in our effort to resolve appellant's first issue, i.e., whether the question under consideration was leading. As stated by Judge Harwood, afterwards Justice Harwood, in Williams v. State, 34 Ala.App. 603, 42 So.2d 500, 503 (1949), cert. denied, 252 Ala. 602, 42 So.2d 504:
"... The 'yes' or 'no' answer test may furnish assistance in many cases in determining the leading character of a question, but it is uncertain and inconclusive, and the ends of justice cannot be served by its mechanical application."
We conclude that the trial court was not in error in overruling defendant's objection to the question. We further conclude that, as the answer disclosed clearly that there was penetration, there is no merit to appellant's contention that there was a "failure to establish penetration."
III.
Appellant asserts, as his third contention for a reversal, the following:
"The trial court committed reversible error when it permitted, over objection of Defendant, the introduction of the details of the complaint given by the Prosecutrix to the investigating police officer."
The issue is complex, and we are not in full agreement with the argument of either the appellant or the appellee on the question. The investigating police officer referred to in the foregoing quotation was Officer Kenneth R. Paul, who, at the time of the trial, was a police officer with the Greenville Police Department; at the time of the alleged crime in this case, he was "the investigating officer" of the Elba Police Department. Upon being called as a witness by the State, he testified for about two pages of the court reporter's transcript until there was a colloquy among the attorneys, the trial judge, and the witness, out of the hearing of the jury. Soon after the hearing in the presence of the jury resumed, the following occurred during the direct examination of Officer Paul:
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