Donahoo v. State, 6 Div. 567

• Decision Date: 20 February 1979
• Docket Number: 6 Div. 567
• Parties: Michael E. DONAHOO, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 68

371 So.2d 68

Michael E. DONAHOO, alias v. STATE.

6 Div. 567.

Court of Criminal Appeals of Alabama.

Feb. 20, 1979.

Rehearing Denied March 27, 1979.

Russell T. McDonald, Jr. and Roger A. Brown, Birmingham, for appellant.

William J. Baxley, Atty. Gen. and Elizabeth N. Petree, Asst. Atty. Gen. for the State, appellee.

DeCARLO, Judge.

Michael E. Donahoo was tried and convicted for rape by a jury in Jefferson County and sentenced to thirty years imprisonment.

In the early morning hours of December 4, 1975, the victim, having left her job as a part-time waitress, drove to the Raleigh Villa Apartments located in the Homewood section of Jefferson County, Alabama. On her arrival, she went to her sister's apartment on the second tier of the three tier apartment complex and knocked on the door, but no one answered. As she stood in the hallway, she heard what sounded like the opening and closing of a door on the floor above her. A moment later, she heard something behind her, turned, and saw a man wearing pantyhose over his head running toward her.

According to the victim, the man grabbed her and began choking her. He told her to "shut up" or he would kill her. She was led to her automobile, a 1974 blue Honda, where the man requested her keys. After unlocking the car door, he pushed her into the car and drove to an area in the apartment complex near the tennis courts. The victim testified that he parked the car, "reached over and put his hand down (the) top" of her clothing. She stated that, when she objected, he again grabbed her around the throat and started choking her "real hard," and told her that, if she did not do what he said, he would kill her.

The victim claimed that her assailant had no weapon other than his hands and described him as being "bigger" than she was. She said she was afraid of him at that time, and that, following his directions, she climbed into the back seat, where he removed her shoes and underclothes. He had sexual intercourse with her without her consent. Subsequently, the assailant returned to the driver's seat and ordered her to return to the front seat also. Then, as he drove back to the apartment building, he asked her her name and told her, among other things, that "he really didn't have to do this sort of thing but he was bored . . . 'look at it this way, it is better to be raped by me than a pimple face fagot.' "

Upon reaching the apartment, the victim remained in her car while her assailant got out and walked away. She got out of the car and looked in the direction her assailant had walked. She saw the man stop, remove the pantyhose from his head and look at her. She told the court, "I stopped momentarily and looked around and he was looking at me and I was looking at him and then I ran up stairs to sister's apartment." She stated further that, as she was knocking on her sister's apartment door, she heard "someone come in the other door that's on the two-level side, went up the stairs and into their apartment." When her sister answered the door, she reported what had happened, and the police were called.

During the trial, the prosecution asked the victim whether she recognized the person who had assaulted her. At that point, the court interrupted, removed the jury, and held a hearing on a motion to suppress the in-court identification on the grounds that it was impermissibly suggestive. Testimony was taken from the victim, Lieutenant Thomas A. Jacobs and Sergeant H. M. Wade.

At the conclusion of the hearing, the court overruled the motion, and the victim made a positive in-court identification of the appellant as her assailant.

She stated that, after the police arrived, she gave them a description of her assailant and his clothing. Further, she said that she later identified his voice and some of his clothing as the clothing her assailant was wearing when she was assaulted.

During cross-examination, the victim said that, when she got out of the car and walked toward her sister's apartment, her assailant had stopped, removed the pantyhose from his head, turned, and looked at her. She also testified that she had noticed the man's hands and that he did not have on any rings, or a watch. She stated that the color of his shirt had stuck in her mind: ". . . I do remember distinctly the navy blue on the cuffs."

Harry M. Wade, Jr., a sergeant with the Jefferson County Sheriff's Department, testified that he investigated the "possible rape" at the Raleigh Villa Apartments, in the early morning hours of December 4, 1975. He stated that he arrived at the apartments about 3:10 A.M., talked with the victim, and then went to an apartment in the same building, occupied by Ms. Vanessa Gant and the appellant. According to Wade, Ms. Gant told him that the appellant had not been in their apartment all night. She stated that he had gone for a walk about 1:00 A.M. and that she did not know when he returned because she was asleep. Wade then advised Ms. Gant that the appellant was a suspect in an assault.

Wade testified that he and Lt. Jacobs were then invited into the apartment and that they advised the appellant, who was sitting in the living room, of his rights. Lt. Jacobs took one of the appellant's shirts downstairs to the victim, but subsequently returned and got another. Wade stated that Jacobs took the second shirt downstairs and that, when he returned, the appellant was taken into the hallway where Wade engaged him in conversation for approximately ten minutes. Lt. Jacobs then returned from the apartment below and placed the appellant under arrest.

The appellant was escorted downstairs to a patrol car parked in front of the apartment building. Wade recalled that he and Lt. Jacobs then took the victim to a window overlooking the parking lot and she saw the appellant walking toward the patrol car. According to Wade, from that vantage point, she observed the appellant in front of the patrol car, with the headlights from another car shining on him. At that time, the victim identified the appellant as her assailant.

Sgt. Wade also testified that, after the victim was taken to the hospital, he and Deputy James Howell returned to the victim's car and that Deputy Howell unlocked and examined the inside of the car. Further, Wade stated that a search of the outside area was conducted, but he did not recall "exactly when it took place."

James H. Howell, a deputy sheriff with the Jefferson County Sheriff's Department and an evidence technician, testified that, on December 4, 1975, he went to the Raleigh Villa Apartments and lifted "latent prints" from a 1974 Honda. Three latent fingerprints were taken from the steering wheel, one from the left door handle, and two from the left door glass. " Howell testified that these fingerprints were compared with those of the appellant and it was his opinion that they were from the same person. Howell also stated that he had received a pair of pantyhose and one shirt from Lt. Jacobs, two pairs of pants from Sgt. Wade.

At the end of Howell's testimony, the State completed its case, and the appellant made a motion to exclude the State's evidence on the grounds that it failed to make out a prima facie case. The motion was overruled and the appellant took the stand in his own behalf.

Michael Donahoo testified that on the date in question he was living at the Raleigh Villa Apartments with Vanessa Gant, who was his wife at the time of the trial. He stated that on the night in question they had had some visitors, and that, about "twenty minutes til one," he and Ms. Gant had driven to a gas station on the Green Springs Highway to buy cigarettes. According to the appellant, the gas station was approximately "a mile and a half" away. When they returned, he stated that he took a walk, because "my sinuses (were) bothering me." He described the clothing he was wearing that night and denied seeing the victim on that occasion, being in her car, or raping her.

During cross-examination, the appellant stated that he had not seen the victim on the night in question and had not seen her automobile. Further, he denied touching the car, sitting inside it, turning the steering wheel, or driving it. He also denied telling Ms. Gant, prior to taking a walk, that the reason he was going was that he was bored.

Vanessa Gant Donahoo, the wife of the appellant, testified that, on December 4, 1975, she was living with the appellant at the Raleigh Villa Apartments. She stated that, on the night in question, they had had visitors who had remained until about 11:00 P.M. She also stated that, after she and the appellant returned from buying cigarettes, the appellant had left the apartment about "five 'til one." She described the clothing that the appellant was wearing that night.

During cross-examination, Mrs. Donahoo denied telling the two police officers that the appellant had left about 1:30 or 2:00 A.M. to go for a walk because he was bored. She also denied telling the police officers that she had been asleep and did not know when he returned.

Lt. Jacobs, recalled in rebuttal, testified that Vanessa Gant had stated on the night in question, in the accused's presence, that: "Her boyfriend, Michael Donahoo, left her apartment at approximately 1:30 and he had gone for a walk because he was bored." Also, she had said "that she had been asleep when he returned and she did not know what time he came back."

I

Counsel for the appellant contends that the trial court committed reversible error in overruling his motion to suppress the in-court identification of the appellant. He maintains that evidence of the victim's identification of the appellant in the "one-man show-up" on the morning of the offense should have been suppressed and that evidence concerning the victim's identification of the appellant's voice was also improperly admitted. The appellant argues that the procedures used were impermissibly suggestive and were in violation of the appellant's constitutional...