Faircloth v. State, 8 Div. 8

Decision Date17 July 1984
Docket Number8 Div. 8
Citation471 So.2d 485
PartiesJim Carl FAIRCLOTH and Michael C. Faircloth v. STATE.
CourtAlabama Court of Criminal Appeals

BOWEN, President Judge.

The original opinion in this case, dated June 12, 1984, is withdrawn, and the following is substituted in its place.

Michael C. Faircloth and his cousin Jim Carl Faircloth were jointly indicted for attempted rape in violation of Alabama Code § 13A-4-2 (1975). Both defendants were found guilty in a joint trial and sentenced to fifty years' imprisonment. This appeal is by Michael Faircloth.

A

The appellant contends that the State failed to present a prima facie case and that his motion to strike the State's evidence and motion for a new trial should have been granted. At trial, defense counsel's objection was: "As to Michael Faircloth, we would move to strike State's evidence for failure to make a prima facie case for the charge of attempted rape."

The State's evidence reveals that Michael actively aided and abetted Jim Carl in the attempted rape and was therefore legally accountable for Jim Carl's behavior. Alabama Code § 13A-2-23 (1975). The victim testified that she was abducted by Michael and Jim Carl. Jim Carl "grabbed" her arm, "shoved" her into a van, and got on top of her and held her down. He beat her with his fist to stop her screaming. Jim Carl told Michael to "start up the van." Michael drove the van, following Jim Carl's directions, to a "secluded" spot down a "little gravel road."

Michael then "guarded" the victim while Jim Carl "went around to the back of the van." Michael "shoved" her back into the van and held her arms down and Jim Carl got on top of her and said, "Hold her, hold her down, and I will hold her legs." The victim stated, "Then they took my shorts off, and when the slim one [Michael] was holding my arms down, I bit him right here [on the arm]." Michael then hit the victim with his fist "right in the face" and "crushed her jaw down because I was screaming and they wanted me to shut up, the two men did." Michael said, "If you don't cooperate you won't ever talk again." The victim also testified that Michael was holding down her arms while Jim Carl was pulling off her shorts.

The victim stated that Michael got directly on top of her and tried to kiss her. When Michael could not stop her from screaming he said, "to H-e-l-l with this b-i-t-c-h. He said, 'I am not going to fight for this. You can have her.' " Then Michael got in the front of the van and Jim Carl attempted to rape the victim but "could not perform."

A defendant may be convicted on the uncorroborated testimony of the prosecutrix. Barnett v. State, 83 Ala. 40, 3 So. 612 (1888); Boddie v. State, 52 Ala. 395 (1875). In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution. Johnson v. State, 378 So.2d 1164, 1169 (Ala.Cr.App.), cert. quashed, Ex parte Johnson, 378 So.2d 1173 (Ala.1979).

It is insignificant that Michael had apparently abandoned his intent to sexually assault the victim when Jim Carl attempted the rape. "One who assists, procures, or counsels another to commit rape and is absent when it is committed is guilty as an accessory before the fact, except that, where the distinction between principals and accessories is abolished by statute, he is guilty as a principal even if absent during its commission." Clayton v. State, 244 Ala. 10, 12, 13 So.2d 420 (1942). Alabama Code § 13A-2-23 (1975) continues the long recognized abolition of the distinction between principals and accessories in Alabama.

Michael aided in the abduction of the victim by driving the van, he guarded her in Jim Carl's absence, and aided in helping Jim Carl hold her down. There is also evidence that Michael attempted to rape the victim and would have done so had the victim not been screaming, fighting, and struggling. Cogman v. State, 424 So.2d 1355 (Ala.Cr.App.1982).

At the beginning of the trial the prosecutor stated to the trial judge that he expected to prove that both Michael and Jim Carl "acted as accessories and principles at different times." In our opinion, the evidence sustains and fully supports that expectation.

B

Michael contends that the consolidation of his case with Jim Carl's was improper for three reasons: (1) The similarity of the names of the defendants led to unnecessary confusion. (2) The Fifth Amendment problem of calling a co-defendant to testify. (3) Jim Carl's prior criminal record.

Michael and Jim Carl were charged in the same indictment. The allegations and proof show that they participated in the same criminal transaction. Their joint trial was authorized by Rule 15.4(c), A.R.Crim.P.Temp. Michael's arguments against consolidation do not reveal that he might have been prejudiced to the extent that a fair trial could not be afforded. Rule 15.4(d) A.R.Crim.P.Temp.

"The test of whether a severance should be granted on the ground of prejudice to the defendants is whether under all the circumstances as a practical matter it is within the capacity of the jurors to follow the court's instructions and to collate and appraise the independent evidence against each defendant solely upon that defendant's own acts." Holsemback v. State, 443 So.2d 1371, 1378 (Ala.Cr.App.1983).

Michael's allegation of prejudice and confusion caused by similarity of names is unfounded. The record reveals that at the time of the crime Jim Carl was bearded and heavy set while Michael was slim. The victim displayed no confusion or hesitation in describing which defendant committed which act. Other than the single fact that both defendants have the same last name, there is no basis for a claim of even possible confusion.

Michael also argues that he could have been prejudiced if Jim Carl had claimed his Fifth Amendment privilege and refused to testify when called as a witness. Regardless of what could have happened, the fact is that it did not.

Before trial, Jim Carl's defense counsel told the trial judge that his client would testify. At trial, Jim Carl testified in his own defense. Michael also testified. Here, there was no violation of the rule that a defendant's Sixth Amendment right to confrontation may be violated by introduction of a nontestifying co-defendant's extrajudicial statement inculpating the defendant. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Both Michael and Jim Carl denied assaulting the prosecutrix. Their defenses were compatible and not mutually exclusive. Holsemback, 443 So.2d at 1378. There has been no showing that the jury had to disbelieve Jim Carl's testimony in order to believe the core of the evidence offered by Michael. United States v. Badolato, 701 F.2d 915, 923-24 (11th Cir.1983).

A severance was not required because Jim Carl had convictions for "breaking and entering and larceny" and for burglary. " 'Compelling prejudice requiring severance does not result when the evidence against the codefendant is more damaging than against the defendant, or when the prosecution introduces into evidence a codefendant's past criminal record or reputation.' " Holsemback, 443 So.2d at 1377-78. The United States Court of Appeals for the Eleventh Circuit "has specifically held that the introduction of evidence regarding a codefendant's past criminal record does not in itself require severance." United States v. Glen-Archila, 677 F.2d 809, 817 (11th Cir.), cert. denied, 459 U.S. 874, 103 S.Ct. 165, 74 L.Ed.2d 137 (1982).

The trial judge instructed the jury to consider the guilt or innocence of each defendant "separately and independently, and if you find that one or the other is guilty, that would raise absolutely no presumption of the guilt of the remaining defendant unless you were considering the offense of aiding and abetting.... You must consider their cases and the guilt or innocence of each defendant separately and relate the evidence to the charge of the State against that defendant, and then go on to the other defendant before you make a consideration of that. You do not base the guilt of one on the guilt of the other." United States v. Hines, 696 F.2d 722, 732 (10th Cir.1982); United States v. Gee, 695 F.2d 1165, 1169-70 (9th Cir.1983). The trial was short, lasting approximately one and one-half days, with only one day of testimony, and the issues were not complex. United States v. Long, 705 F.2d 1259, 1263 (10th Cir.1983); United States v. Butera, 677 F.2d 1376, 1385-86 (11th Cir.1982), cert. denied, 459 U.S. 1108, 103 S.Ct. 735, 74 L.Ed.2d 958 (1983). Under these circumstances, the motion to sever was properly denied.

C

Soon after the victim had been released by her assailants, she flagged down a passing automobile driven by Debra Applegate. Over objection, Ms. Applegate was allowed to testify that when the victim got in her car she kept repeating the license tag number of the van and said that "two guys had tried to rape her." Considering the "factors relating to whether the declarant was under the stress of a nervous excitement at the time the statement was made", Wallace v. State, 408 So.2d 171, 173 (Ala.Cr.App.1981), cert. denied, 408 So.2d 173 (Ala.1982), we find that this testimony was properly admitted as a spontaneous exclamation and an exception to the hearsay rule. Brooks v. State, 57 Ala.App. 478, 329 So.2d 167 (1976); Daniell v. State, 37 Ala.App. 559, 73 So.2d 370, cert. denied, 261 Ala. 145, 73 So.2d 375 (1...

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