Freeman v. State

• Citation: 555 So.2d 196
• Decision Date: 22 March 1988
• Docket Number: 8 Div. 200
• Parties: Darryl Eugene FREEMAN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 196

555 So.2d 196

Darryl Eugene FREEMAN v. STATE.

8 Div. 200.

Court of Criminal Appeals of Alabama.

March 22, 1988.

Rehearing Denied Sept. 20, 1988.

James M. Dyer and R. Wayne Wolfe, Huntsville, for appellant.

Charles A. Graddick and Don Siegelman, Attys. Gen., and P. David Bjurberg, William D. Little and William W. Whatley, Asst. Attys. Gen., for appellee.

ON APPLICATION FOR REHEARING

McMILLAN, Judge.

This Court's original opinion of June 10, 1986, is hereby withdrawn and the following opinion is substituted therefor:

The appellant was indicted for the capital offense of murder committed during a rape in the first degree or attempt thereof, § 13A-5-40(a)(3), Code of Alabama (1975). The appellant pleaded not guilty and not guilty by reason of insanity, but withdrew the insanity plea prior to trial. The jury returned a verdict of guilty of the capital offense and, following a sentencing hearing held pursuant to § 13A-5-45, Code of Alabama (1975), unanimously recommended a sentence of life without parole. The trial court held a hearing pursuant to § 13A-5-47, Code of Alabama (1975), and sentenced the appellant to death.

April Denna Scott, two and a half years of age, was pronounced dead on arrival at Huntsville Hospital around 5:30 a.m., on October 9, 1983. The coroner testified that the victim had suffered a large hematoma over the mid-forehead, multiple contusions about the cheeks, multiple contusions and lacerations of the tongue, a large hemorrhage underneath the scalp, a bilateral hemorrhage under the covering of the brain, massive swelling of the brain, lacerations or tearing of the frontal lobe, and a bruise on the back part of the brain. He further noted multiple bruising of the upper torso, bleeding underneath the skin, a bruise in the right lung, a bruise in the thymus gland, a bruise involving the diaphragm, a crushing of the leader to the liver, hemorrhage around the adrenal gland and the pancreas, and a bruise in the spleen. He testified that there were injuries to the child's genitalia, including a laceration of the hymen, as well as a superficial bruising of the outer aspect of the hymen. He classified the injuries to the genitalia as massive and stated that the cause of death was blunt force trauma. A forensic scientist testified that he found seminal fluid stains on two swabs submitted by the coroner following his examination of the victim's genitalia.

The appellant gave an oral statement to the police at the hospital in which he claimed that the child woke up, vomited, but then appeared to go back to sleep. He denied having any knowledge of how the child died. He subsequently gave an oral statement and a written statement at the police station admitting that he killed the child. He stated that he had been living with the child's mother, Angela Scott, for six or seven months; that Angela Scott left with her sister around 11 o'clock on Saturday, October 8, to go out on the town, while he remained to keep the baby; that he pulled a mattress into the living room and began watching television, while the child slept on the couch; that after he had fallen asleep, the child awoke and began crying; and that he told her to be quiet, but she continued to cry and arose from the couch; and that he told her again to be quiet, but she continued to cry; so he hit her in the stomach with his fist. He stated that she did not fall down, but continued to cry; that he hit her again in the stomach with his fist, knocking her to the floor; that she stood up, still crying, and he hit her again in the stomach, knocking her down; that she rose again crying and he hit her in the head with his fist, knocking her down; that when she stood again, he hit her a second time in the head and, as she fell, she hit her head on the coffee table. He stated that she was no longer moving so he picked her up and noted that she appeared limber, that her head was dangling and that her eyes were rolling around in her head. He said that he laid her back on the couch and that, five to ten minutes later, she began vomiting; that he cleaned up the couch and floor with paper towels, which he deposited outside in a garbage can; that the child again got sick, vomiting blood, which he cleaned up with paper towels; and that he could hear April moaning and then thought she went to sleep. He also said that around 4:30 a.m. on October 9, Angela Scott returned and he told her that the child had gotten sick, and that she determined that the baby was not breathing and ran to call an ambulance and her mother. The appellant stated that he had "just gotten mad" and "felt like the devil was inside of him." He stated that he did not intend for April to die.

At trial, the appellant testified to substantially the same facts, claiming that he did not intend to kill the child. He never admitted having any type of sexual contact with the victim.

I

The appellant argues that the evidence was insufficient to support the element of sexual intercourse or attempt thereof included in the capital offense. The coroner testified that the victim suffered massive injuries to her genitalia, including laceration of the hymen and outer hymen areas. He further testified, however, on cross-examination that in his opinion the injuries were not sustained as the result of intercourse. He stated on direct examination that the injuries might be consistent with "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)." Faircloth v. State, 471 So.2d 485, 489 (Ala.Cr.App.1984), affirmed, Ex parte Faircloth, 471 So.2d 493 (Ala.1985). The crime of rape requires proof of an actual penetration of the female sex organ by the male sex organ. Rowe v. State, 421 So.2d 1352, 1356 (Ala.Cr.App.1982). See also Jackson v. State, 471 So.2d 516 (Ala.Cr.App.1985). " 'However, penetration to any particular extent is not required, ... nor need there be an entering of the vagina or rupturing of the hymen, the entering of the vulva or labia being sufficient; but some degree of entrance of the male organ within the labia pudendum is essential.' " Thomas v. State, 53 Ala.App. 232, 298 So.2d 652, 656 (Ala.Cr.App.), writ. denied, 292 Ala. 755, 298 So.2d 657 (1974). Whether such penetration is accomplished is a factual question for the jury. Jackson v. State, 390 So.2d 671, 673 (Ala.Cr.App.1980), writ denied, 390 So.2d 675 (Ala.1980). A review of the facts clearly indicates that the jury could reasonably have inferred that there had been a penile penetration. Jackson v. State, supra; Hepstall v. State, 418 So.2d 223 (Ala.Cr.App.1982). This is true despite the appellant's persistent denial of the rape or attempted rape. Johnson v. State, 473 So.2d 652, 657 (Ala.Cr.App.1985).

someone's having attempted to have intercourse with her. There was further evidence that seminal fluid, which is only produced by a male, was found in her vaginal canal, although no spermatozoa were observed. The appellant produced evidence that he does not suffer from any condition which would have caused the lack of spermatozoa in his seminal fluid. The appellant admitted to being alone with the child on the night in question, and there is no evidence that any other male came into contact with the victim, nor was there any other explanation given for the injuries to her genitalia.

Furthermore, the evidence would be sufficient to support a conviction of the capital offense where the State proved attempted rape in the first degree. "A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense." § 13A-4-2(a), Code of Alabama (1975). The coroner testified that, although he did not believe the victim's injuries were caused by intercourse, he testified that penetration had occurred and that the injuries were consistent with attempted intercourse. The State presented ample circumstantial evidence of an attempt to commit rape in the first degree. See Utley v. State, 508 So.2d 287 (Ala.Cr.App.1986). Whether circumstantial evidence which tends to connect the appellant to the crime excludes to a moral certainty every other reasonable hypothesis but that of guilt, is a question for the jury and not this court. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). "[T]here was evidence from which the jury might reasonably conclude that the evidence and all reasonable inferences therefrom excluded every reasonable hypothesis other than guilt and proof of the corpus delicti of rape." Dunkins v. State, 437 So.2d 1349, 1354 (Ala.Cr.App.1983) affirmed, Ex parte Dunkins, 437 So.2d 1356 (Ala.1983) (emphasis in original).

II

The appellant argues that his statements were not voluntary, but were made because of a promise of leniency offered by the police officers in return for the statements. The appellant does not deny that he was properly advised of his Miranda rights, but contends that he was told by Officer Danny Cox that if he would confess to killing the deceased, he would not receive the death penalty and, further, that he was told by Officer Howard Turner that if he would cooperate he might receive better treatment by the court.

The record indicates that the first statement was made by the appellant in a small office at the hospital after the victim had been pronounced dead on arrival. Officer Cox testified that he and another officer were present and that the appellant responded that he understood his rights and would talk to the police officers. Officer Cox testified that the appellant indicated that he understood he was neither being threatened, nor being promised...