Ferguson v. State

• Decision Date: 21 April 1981
• Docket Number: 1 Div. 179
• Parties: Stanley W. FERGUSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 204

401 So.2d 204

Stanley W. FERGUSON v. STATE.

1 Div. 179.

Court of Criminal Appeals of Alabama.

April 21, 1981.

Rehearing Denied May 26, 1981.

Ian F. Gaston of Gaston, Bryant, Gaston & Burns, Mobile, for appellant.

Charles A. Graddick, Atty. Gen. and Jacquelyn L. Lufkin, Asst. Atty. Gen., for appellee.

HARRIS, Presiding Judge.

Appellant was convicted of rape and sentenced to imprisonment in the penitentiary for a term of twenty years. At arraignment, in the presence of counsel, he interposed a plea of not guilty. After sentence was imposed he gave written notice of appeal and waived the benefit of a suspended sentence. The judgment entry reflects that appellant was given one year, four months and seventeen days credit for time spent in jail prior to trial.

The evidence presented by the State made out a clear-cut case of rape and there is no contention to the contrary. Appellant did not testify nor was any testimony offered in his behalf.

The prosecutrix testified that, on the afternoon of January 29, 1979, she attended an open house party given by her husband at the University of South Alabama Medical Center where he was employed. At approximately 5:30 p. m., she and her husband left the party and went home in separate cars. Upon arriving home she got her checkbook and went shopping at the Delchamps store located on the corner of McGregor and Airport Boulevard. She bought three bags of groceries and carried them to her car. As she was putting the groceries on the passenger's side of the front seat of her car she noticed a dark green station wagon drive up and stop near her car. It was occupied by two white males. One of the men remained in the car and the other got out and moved as if he were going into the store. Suddenly and without warning this man came up behind the prosecutrix and placed what appeared to her to be a straight razor on her neck. He ordered her to get in her car and drive. She protested and asked him what he was going to do and he replied, "You will find out."

The prosecutrix started driving but told the man she could not see well at night. She was then ordered to crawl over him and the man started driving. The green station wagon followed close behind. Appellant ordered the prosecutrix to get out of her car and into the station wagon. All of her clothes were removed and appellant ordered her to have oral sex with him and then forced her to have sexual intercourse with him. After gratifying his lust he left the scene purportedly to buy cigarettes, driving the prosecutrix's car. After he drove away she was forced to have sexual intercourse with appellant's companion. When appellant returned he forced the prosecutrix to have sexual relations with him again. Appellant then drove the victim back to Delchamps parking lot where he got in the station wagon and the two assailants drove away.

The prosecutrix returned home and fell in the door of her home. She was finally able to tell her husband that she had been raped. Later she, her husband and Detective Cliff Lockett drove back to the scene of the crime. The prosecutrix reported to the officers that two cameras and a C. B. radio were stolen from her automobile that night. The two cameras were later returned to her by Detective Lockett.

The rape was committed on Monday night and the following Friday the prosecutrix attended a lineup of six persons and without the slightest hesitation she identified appellant and his companion as being the two men who raped her. She also made a positive in-court identification of appellant as the man who raped her twice on that Monday night.

Officer Eugene Ganoe of the Mobile Police Department testified concerning the lineup in which appellant appeared. Over objection Officer Ganoe stated that he told the prosecutrix on the evening of the lineup, "I told her about as I do most all people We have someone that may or may not be the person who attacked her. I told her I was gonna have six people come up to the glass and turn ninety degrees, rotate, then go back and get into line. I told her don't go out with the idea that you must pick someone, that she had to pick someone. That he may or may not be out there." Officer Ganoe further testified that after the prosecutrix viewed the lineup she immediately said, "That's them right there sir." She identified appellant and his companion Thomas R. Selyn. Officer Ganoe stated that he did not tell the prosecutrix that her assailants were going to be in the lineup.

Officer Ganoe also testified that he gave appellant a waiver of rights form and read it aloud to him and gave him a copy to read along with him; that appellant signed the form and told the officer that he understood what he was reading. The waiver form reads as follows:

"I, Stanley Fergusen, have been informed by the undersigned Law Enforcement Officers, prior to being questioned by them, that I am suspected of the offense of rape in Mobile County, Alabama on the 1-29th-79, and have been informed of my rights as follows:

"1. That I may remain silent and do not have to make a statement at all.

"2. That any statement which I might make, may and will be used against me in Court.

"3. That I have a right to consult with an attorney before making any statement and to have such attorney present with me while I am making a statement.

"4. That if I do not have enough money to employ an attorney I have the right to have one appointed by the Court to represent me, to consult with him before making any statement, and to have him present with me while I am making a statement.

"That if I request an attorney no questions will be asked me until an attorney is present to represent me.

"That at any time during the questioning I may request that the questioning be stopped and it shall be stopped.

"After having my rights explained to me, I freely and voluntarily waive my right to an attorney. I am willing to make a statement to the officers. I can read and write the English language, and fully understand my right to an attorney. I have read this waiver of counsel and fully understand it.

"No threats or promises have been made to me to induce me to sign this waiver of rights and counsel, and to make a statement to the officers on this 2nd day of February."

This witness further testified that he did not threaten appellant, or promise him anything, or offer any rewards or other inducements to get him to sign the waiver of rights form. Officer Ganoe did not question appellant concerning the charge against him but left that responsibility to Officer O. C. Lockett who was coming on duty to work his shift. However, he did tell Officer Lockett that appellant had been given the Miranda rights and had signed the waiver of rights form.

Officer Lockett interrogated appellant the night of the lineup. The voluntariness predicate was laid and appellant admitted to him that he and the co-defendant grabbed the prosecutrix in the parking lot, drove her to a wooded area and forced her to have sex with them. He also testified that he had known appellant for fifteen years and knew his mother with whom appellant was then living. During his interrogation of appellant he learned from him that the two stolen cameras were in the top of his closet at his home. Officer Lockett went to appellant's home and told his mother where the cameras were located and she surrendered them to him. Lockett returned...