Fisher v. State

• Decision Date: 20 January 1976
• Docket Number: 8 Div. 721
• Citation: 57 Ala.App. 310,328 So.2d 311
• Parties: Johnny Ray FISHER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 311

328 So.2d 311

57 Ala.App. 310

Johnny Ray FISHER v. STATE.

8 Div. 721.

Court of Criminal Appeals of Alabama.

Jan. 20, 1976.

Rehearing Denied Feb. 17, 1976.

[57 Ala.App. 311] C. Wayne Morris, Huntsville, for appellant.

William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State.

BOOKOUT, Judge.

Rape; sentence: ten years imprisonment.

The prosecutrix testified she returned home from work around 11:30 P.M. on January 27, 1975. As she walked up on her porch, a person came up to her and asked if she had a telephone, and she answered, 'no.' The prosecutrix was attempting to unlock the door to her apartment and was trying to awaken her husband to let her in. She could not awaken him, and the appellant returned and grabbed her from behind, around the neck. She stated that she screamed and that she could not say anything. The appellant then 'drug' her approximately a block and a half to a secluded spot. She testified that, '(h)e kept telling me that I was going to give him anything he wanted. Would I give him anything he wanted and I agreed with him because I was scared he would hurt me. And so, he told me to take my clothes off.' She testified that he had sexual intercourse with her at that time.

After the ordeal, they returned to the front of her apartment building. The prosecutrix stated that appellant asked if she had any money and that she emptied all the contents of her purse on the sidewalk and gave him some pills and all of the money that she had. She told appellant that she did not have any more money, but would have some more the next day. The appellant then told her that he would come back the next morning.

As soon as the appellant left, the prosecutrix went to her husband and told him what had happened. Her husband got her mother, who then called the police. He then took the prosecutrix to the hospital for an examination.

The appellant came back to the apartment the next morning, but ran when he was confronted by the prosecutrix's husband. He later ran from the police, but was captured. He was positively identified by the prosecutrix immediately after his arrest and also during the trial.

Ronald Adams, a Huntsville police officer, testified for the State that he went to the home of the prosecutrix at 12:27 in the early morning hours of January 28, 1975. He testified that he was met at the front door by the husband and that once inside, he found the prosecutrix sitting in a chair, crying. After a conversation with her, he advised her husband to take her to the emergency room of the hospital for an examination.

The prosecutrix's husband testified that on the night in question, his wife came into their bedroom and stated that she had been raped and some money had been taken from her. He also testified that the next morning when the appellant came to the back door, he asked appellant, '(w)ere you the guy that messed with my wife last night?' He stated that the appellant ran, and he chased him for about two blocks.

The appellant, Johnny Ray Fisher, testified that he approached the prosecutrix on the front porch and inquired about the use of a telephone. He testified that he walked off two or three steps and then turned around and put his arm around her shoulder. She turned around and 'hollered' slightly. After this, the prosecutrix asked him where he was going, and he then asked her if she would like to go for a walk, and she said that she would. The appellant testified that they walked around the apartment and that the prosecutrix asked him if he had ever had sex with a white lady. The appellant stated that they started hugging and kissing, and that she made advances concerning his sexual organ. He testified that he had no weapons in his possession at any time. He further stated that the prosecutrix started taking her clothes off and that he had not asked her for anything. He said she pulled him down on top of her. He admitted to having sexual intercourse with the prosecutrix, after which he said she asked if he needed any money. She had left her purse on the front porch when she went for a walk with him, and they went back to the front of the apartment for her to get her purse. She then emptied the purse on the sidewalk and offered him some pills and money. The appellant stated that the prosecutrix asked him to come back at 7:00 or 7:30 A.M. She told him not to come to the apartment, however, if he saw a black and white car parked there.

Erssie Draper, the next door neighbor of the prosecutrix testified as to the incident on the night of the rape. She stated that the appellant 'grabbed' the prosecutrix, and the prosecutrix screamed. She further stated that '(h)e had her around the neck and he carried her on around.' The witness also observed them return to the front of the apartment and saw the prosecutrix empty her purse onto the driveway and give the appellant a bottle. She heard him say, 'I will see you and don't forget.' She then heard the prosecutrix say, 'I won't.' After this, the appellant walked away. She also testified that the prosecutrix, after the incident, came to the wrong window and 'she pecked on my daughter's window.'

The State put on a rebuttal witness, Emily Lofty, an employee of a Huntsville motel. Over objection, she told of being assaulted by the appellant five days prior to the instant case. The appellant was called in rebuttal and denied ever seeing the witness and stated that he did not attack her.

I

Counsel for appellant ably and vigorously asserted the rights of his client both in the trial court and here on appeal. Counsel contends that the trial court erred in refusing to allow the appellant to strike a jury from forty-eight veniremen.

Act No. 532, Acts of Alabama 1969, approved August 21, 1969 (Title 13, § 125 (90h) 1973 Cum.Supp., Code of Alabama, Recompiled 1958) provides that in the Twenty-third Judicial Circuit, a defendant, '.. . in capital felony cases shall be entitled to strike from a list of not less than forty-eight competent-jurors . . ..'

The appellant challenges the trial court's ruling that capital felonies are now to be considered non-capital felonies since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Appellant's challenge of the venire is based upon the recent ruling of the Alabama Supreme Court in Ex parte Bynum, Jr., 294 Ala. 78, 312 So.2d 52 (1975). There the Court held that 'capital offenses' still exist in Alabama stating, '. . . The only effect of Furman was to eliminate the imposition of the death penalty as it was then enforced, and not to eliminate the classification whereby crimes are categorized as capital for purposes other than punishment.'

Contrary to the broad language employed by the Supreme Court in Bynum, we are of the opinion that the Court was addressing itself solely to the question of bail. The purpose for a special venire in 'capital cases' was to give a defendant, on trial for his life, an additional safeguard not given to those where only their liberty was at stake. At the time Act No. 532, supra, and Title 30, § 63, Code of Alabama 1940, were enacted, the only distinction between 'capital' and 'non-capital' cases was the possible imposition of the death penalty. Since the imposition of the death penalty has been suspended, there is no rational justification for a special venire in a case formerly classified as 'capital' where the maximum punishment is now the same as in a 'non-capital' case.

Should the legislature ever enact a death penalty statute which meets all the constitutional tests for validity, then such special venire statutes would again become applicable, in our opinion. We do not believe the Alabama Supreme Court intended that its reasoning in the Bynum decision should be extended to require a special venire in cases where the death penalty cannot be imposed.

II

The appellant contends that the trial court committed reversible error in certain rulings concerning testimony given by Officer Ronald Adams.

Adams testified that the rosecutrix's husband met him at the door of the apartment, and the following occurred:

'A. Yes, sir. He stated that his wife had been raped by a colored fellow.

'MR. MORRIS: We object and move to strike any testimony not part of the res gestae.

'THE COURT: I sustain it. But let me point out that you heard the question and you sat there and had an opportunity to hear it without objection. So, the point I am making is, enter your objection timely.

'MR. MORRIS: I didn't understand all the answer he was giving or the question.

'THE COURT: You understood the question. Go ahead.

'MR. MORRIS: We accept to the Court's ruling.

'THE COURT: Anyway, I sustain the objection, but enter your--I sustain it, but enter it at the time, next time.'

It is the contention of the appellant that the above statement identified the appellant. The appellant cites a number of cases to the effect that the State may prove that a complaint was made, but details of the occurrence, including the identity of the person accused, are not proper subjects of inquiry. Hall v. State, 248 Ala. 33, 26 So.2d 566 (1946).

Although the proposition of law is correctly stated by appellant, we do not find that the statement here objected to goes into the details of the occurrence or identifies the person accused. The husband's statement that, 'his wife had been raped by a colored fellow,' in no way identified Johnny Ray Fisher as the rapist. The term 'colored fellow' is too broad to identify any particular person out of a group of thousands who could fit that description. The trial court sustained the appellant's objection, but made no ruling on the motion to 'strike' the testimony. We find no prejudicial error on the part of the trial judge in sustaining appellant's objection, but failing to exclude the testimony from the jury.

Officer Adams further testified concerning his investigation, and the following occurred:

'A. She was sitting in a chair in the living...