Clay v. State, CR
| Decision Date | 29 September 1986 |
| Docket Number | No. CR,CR |
| Citation | 290 Ark. 54,716 S.W.2d 751 |
| Parties | Stephen Wayne CLAY, Appellant, v. STATE of Arkansas, Appellee. 86-71. |
| Court | Arkansas Supreme Court |
Hale, Ward, Young, Green & Morley, by Milas H. Hale, III, N. Little Rock, for appellant.
Steve Clark, Atty. Gen. by William F. Knight, Asst. Atty. Gen., Little Rock, for appellee.
The appellant was convicted of rape, burglary, and harassing communication. The facts surrounding the crimes are set out in detail because the sufficiency of the evidence is questioned.
The prosecutrix's alarm clock sounded at 5 a.m. As she started to get up, an intruder hit her in the mouth and threatened to kill her if she screamed. He put one hand on her throat and, with his other hand, removed her underclothing. He then raped her a total of five times; first, by forcible sexual intercourse; second, by forcing her to perform fellatio; third, by anal intercourse, and the fourth and fifth times, by forcible sexual intercourse. The prosecutrix did not get a direct view of her attacker's face but was able to give a physical description of him and to describe his clothing, including a grayish green t-shirt and spectator type shoes. Police officers testified that when they arrived at her home at 6:45 a.m. she was distraught, shaken, and showed signs of injury to her face. The examining medical doctor found evidence consistent with the prosecutrix being forcibly raped. That evidence included sperm, a contusion, a bruise, and soreness in her neck and arms. The doctor utilized a sexual assault evidence collection kit for taking evidence. The police took latent fingerprints at the prosecutrix's home.
Late that evening, the prosecutrix looked at a photographic line-up assembled by the police and picked out someone other than appellant as her attacker. That person's fingerprints did not match the latent prints found at the scene.
Three weeks later the prosecutrix began receiving alarming telephone calls. For example, on one occasion the caller said: The prosecutrix recognized the voice as that of her attacker. An electronic tracing device was placed on the prosecutrix's phone, and it was discovered that the calls were coming from the home of Willie Clay, who is appellant's father. Appellant lived in his father's home at the time. The police then went to the home and found appellant. They immediately noticed a pair of spectator type shoes and found a grayish green t-shirt.
The prosecutrix identified the shoes and shirt as those worn by her attacker. She identified appellant in a police line-up and positively identified him in court.
Appellant's fingerprints were compared with those found at the scene, and they matched. A forensic serologist testified that appellant's blood group and secreter status were consistent with that found in the vaginal smear slide, the vaginal swabs, and the vaginal washings, which were part of the sexual assault evidence kit utilized by the doctor.
The evidence is sufficient to sustain the convictions on all three charges. The prosecutrix gave direct testimony that appellant unlawfully entered and remained in her house for the purpose of committing rape. The testimony proved all of the elements of burglary. See Ark.Stat.Ann. § 41-2002 (Repl.1977). The positive eyewitness testimony of the prosecutrix alone was sufficient to sustain the guilty verdict. Pridgett v. State, 276 Ark. 52, 631 S.W.2d 833 (1982). In addition, appellant's fingerprints were found at the scene.
The prosecutrix gave direct testimony that the appellant engaged in sexual intercourse and deviate sexual activity with her by forcible compulsion. The testimony proved the elements of rape. See Ark.Stat.Ann. § 41-1803 (Repl.1977). In a rape prosecution the positive identification of a defendant by a prosecutrix alone is sufficient evidence to sustain a conviction. Hamm v. State, 214 Ark. 171, 214 S.W.2d 917 (1948). In addition, the medical evidence, the fingerprints, and the telephone calls constituted corroborating evidence.
To sustain a conviction for harassing communications there must be substantial evidence to show that a person, with the purpose to harass, annoy, or alarm another person, contacts that person by telephone in a manner to harass, annoy, or alarm. Ark.Stat.Ann. § 41-2910(1)(a) (Repl.1977). The testimony of the prosecutrix proved all of the elements of the crime. In addition, the records of the electronic tracing device corroborated her testimony.
Appellant next charges that the trial court erred in refusing to grant a mistrial when, after the trial had commenced, a juror told the trial judge that he knew the prosecutrix. The juror stated that the prosecutrix had spoken to him during the lunch hour and that, after reflection, he had recalled meeting her three or four years earlier as he repaired a typewriter at a bank where she worked. He stated that he had not seen her since that time and that he could be a fair and impartial juror. There simply is no showing that the juror was biased. The trial court did not abuse its discretion in refusing to grant a mistrial. The facts of the case at bar show an innocent failure to initially recognize the victim, and are clearly distinguishable from those cases where a juror intentionally gave false information during voir dire. See, e.g., B & J Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984).
Appellant next contends that the trial court erred in denying his motion for continuance in order to change attorneys. Again, the argument is without merit. The refusal to grant a continuance rests within the discretion of the trial court, and the decision will not be overturned absent a showing of abuse of that discretion. Thorne v. State, 269 Ark. 556, 601 S.W.2d 886 (1980). Here, the original attorney appeared with appellant at plea and arraignment. Appellant said nothing about changing attorneys. The same attorney appeared with appellant at a later hearing, and appellant said nothing about any problems with counsel. Then, just before the trial, appellant decided he wanted a different attorney and a delay. The trial court ruled:
This court denies the request to change counsel at the last moment unless new counsel can go forward without a delay in the court. These requests are made on a regular basis and it's my experience that to allow a continuance because this defendant wants to change counsel will result in nothing being tried. Many of these are...
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State v. Robbins
...jurisdictions which have applied the Batson rule to determine whether a prima facie case has been made. See, e.g., Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986); People v. Cannon, 150 Ill.App.3d 1009, 104 Ill.Dec. 82, 502 N.E.2d 345 (1986); People v. Lester, 145 Ill.App.3d 720, 99 Ill.D......
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