Fairchild v. State

• Decision Date: 09 December 1986
• Docket Number: 1 Div. 230
• Citation: 505 So.2d 1265
• Parties: Noel FAIRCHILD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1265

505 So.2d 1265

Noel FAIRCHILD v. STATE.

1 Div. 230.

Court of Criminal Appeals of Alabama.

Dec. 9, 1986.

Rehearing Denied Jan. 27, 1987.

Certiorari Denied April 24, 1987

Alabama Supreme Court 86-641.

Barbara A. Brown, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Victor Jackson, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant, Noel Fairchild, was found guilty of the offense of rape in the first degree and sentenced to a term of 13 years in the State penitentiary. The appellant was also ordered to pay a victim's compensation assessment of $150 and costs within nine months after his release from prison; he was further ordered to pay restitution in the sum of $189 for the benefit of the victim.

The alleged victim testified that she was 12 years old at the time of the offense and had invited William Cain, Matthew Fairchild, Richard Singley, and James Singley over to her house because she was "going with" William Cain, who was 13 years old at the time. In court, she identified the appellant as Matthew Fairchild. She testified that that evening she and William Cain, hereinafter "Billy", were in the back bedroom. Billy's head was in her lap and he was sleeping. She further testified that she liked Billy "a lot" and that he did not mind his friends touching her, although she would tell them to move their hands. The boys all left, but Billy and Matthew, who were 19, returned and began trying to touch her. She testified that she told them to stop and, thereafter, they left. She then went to the bedroom, turned on two radios and went to sleep. She was later awakened by someone trying to kiss her and sitting on her; however she testified that she could not identify the individual initially because of the dark. As her eyes became adjusted to the light, she observed the appellant lifting up her shirt. She attempted to fight back, and the appellant pinned her hands so that she could not move. He continued undressing her and she was able to free her hands and push him off of her. They continued fighting and he began choking her until she stopped struggling. She became aware that he was undressing and she began to struggle again, whereupon he grabbed her by the throat and so she again stopped struggling. She testified that he then raped her and that when he got off of her she ran into the bathroom. In the bathroom, she observed that the window had been lifted higher, the screen had two holes in it, and there were muddy footprints under the window and on the toilet and on the floor. She testified that the screen was pulled out, but she could not remember whether it was hanging on the hinges or resting on the ground. The victim testified that she was scared and could not find enough change for the pay phone, so she went to Billy Cain's house and asked to speak with him. Billy was asleep and when she asked him to come outside so that she could talk to him, he just looked at her and went back inside. She then found enough change in a pay phone to make a call in an attempt to find her mother; however, her mother had already left home. As she walked back to her home, her mother met her, sent someone to telephone the police, and took the victim to the hospital.

The victim's mother testified that when she returned home on the night in question, the door was unlocked, open, and her house was empty. She testified that she determined that something "had gone on," because her daughter was not there and the clock radio had been thrown, and she further noticed that the screen wire on the back of the windows and several of the window screens had been tampered with. Further, the bathroom window screen was on the ground. She then testified that she and a friend began to search for the victim and found her as she was walking back toward the house. The mother then testified that she observed mud on the toilet seat and below the window in the bathroom. She stated that when she first observed her daughter, she was crying and very upset, but detected no physical harm done to her. She further testified that later on the day of the alleged rape, she and her daughter went to do laundry and that when the daughter walked into the laundromat, she quickly exited, informing her that the perpetrator was inside. The mother confronted the alleged perpetrator and told him that she intended to see him taken to court. She further testified that the alleged perpetrator responded with laughter, and she identified the appellant as that person. On cross-examination, she stated that he also denied having committed the offense.

The investigating officer testified that the victim was crying and upset when he arrived at the scene. He further testified that she had some red marks on her throat and that the bathroom window screen was lying on the ground and had a small tear in it. He also observed mud in the area of the screen and the bathroom. On redirect, he also stated that he observed the broken clock radio.

The State also presented testimony of the doctor who prepared the rape kit and testimony concerning its chain of custody.

I.

The appellant contends that the trial court erred in denying him youthful offender status. The record contains an extensive report of the investigation conducted concerning the youthful offender status sought by the appellant. The appellant, however, contends that the order which denied him youthful offender status does not state that the judge relied on the report in denying the request and the record is bare of any type of hearing which dealt with the request.

"While an order denying a request for youthful offender treatment need not list or enumerate all the factors considered by the trial judge, it should reflect that some investigation, examination or inquiry was had of the youth before the request was denied. Watkins v. State, 357 So.2d 156 (Ala.Cr.App.1977), cert. denied, 357 So.2d 161 (Ala.1978). Although the order of the trial judge does not state that the Report of Youthful Offender Investigation was considered, that Report is contained in the record as Court's Exhibit 1. Because of this and because this issue was not raised in the trial court, we find no error in the denial of the request for youthful offender treatment.

"The granting or denial of such a request is a matter in which much by necessity must be left to the discretion of the trial judge, who has the opportunity to personally observe the youth. McClendon v. State, 341 So.2d 174, 175 (Ala.Cr.App.1976), cert. quashed, 341 So.2d 178 (Ala.1977) ('almost absolute discretion'). While a statement by the trial judge of his reasons for denying youthful offender status would be sufficient to demonstrate the statutory requirement of investigation and examination, Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), we adhere to the principle that the trial judge is not required to state his reasons for denying youthful offender status. Morgan v. State, 363 So.2d 1013 (Ala.Cr.App.1978); Reese v. State, 381 So.2d 107 (Ala.Cr.App.1980)." Shula v. State, 465 So.2d 448, 451-52 (Ala.Cr.App.1984), reversed on other grounds, Ex parte Shula, 465 So.2d 452 (Ala.1985).

Almost absolute discretion is vested in the trial judge by the Youthful Offender Act to grant or deny youthful offender status after an appropriate investigation is conducted. Morgan v. State, 363 So.2d 1013, 1015 (Ala.Cr.App.1978). The record clearly shows that the probation officer conducted an investigation of the appellant, recommending that youthful offender status be denied. See Speaks v. State, 494 So.2d 112 (Ala.Cr.App.1985) reversed on other grounds, Ex parte Speaks, 494 So.2d 118 (Ala.1986). We therefore hold that the trial judge did not abuse his discretion.

II.

The appellant contends that the trial court erred in denying his motion for mistrial based on the prosecutor's statement made during his opening argument. The following statements were made by the prosecutor in his opening argument:

"PROSECUTOR: Listen to the little girl. It's a terrible thing. She was raped once on November 2, 1984 and now almost a year later she is going to get on that witness stand and we are going to have to rape her again.

"DEFENSE COUNSEL: I am going to object, if it please the Court. That's highly prejudicial. I ask for a mistrial. We are going to have to rape her again. I have nothing to do with that.

"THE COURT: The objection's well taken. Ladies and gentlemen, this is the point in the trial when the State is supposed to tell you what they expect for the evidence to show. Nobody in this courtroom is going to rape anybody at any time during this trial. This is going to be a very civilized proceeding. The only questions that are going to be allowed will be those questions allowed under the law. We have excellent counsel on both sides in this case and both have their hearts in the case. And as a result, each one of them from time to time may say something a little bit over passionate. You should not let that affect your judgment in any way, shape or form, but rather you should recall or remember and keep in mind the sole issue for you all to determine is whether or not this defendant committed all of the essential elements of the crime of rape and whether or not the State has proved by evidence from the witness stand and exhibits introduced into evidence that that has occurred. If the State does prove that beyond a reasonable doubt, they will be entitled to a verdict of guilty. If the State does not, then the defendant will be entitled to a verdict of not guilty. Okay."

The appellant contends that this remark created such prejudice against him that it could not be eradicated from the jurors' minds.

"It is, of course, the duty of every prosecutor to represent the interests of the state zealously, vigorously, and earnestly. His 'responsibility [as] a public prosecutor differs from that of the usual advocate; [his] duty is not merely to convict, but also...