Hall v. State

• Decision Date: 14 October 1986
• Docket Number: 3 Div. 964
• Parties: Larry Paul HALL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1282

500 So.2d 1282

Larry Paul HALL v. STATE.

3 Div. 964.

Court of Criminal Appeals of Alabama.

Oct. 14, 1986.

Rehearing Denied Dec. 9, 1986.

Thomas M. Goggans of Goggans & McInnish, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Jean Alexandra Webb, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

A jury found Larry Paul Hall guilty on a trial on an indictment that charged that he "did engage in deviate sexual intercourse with Cindy Dutton, by forcible compulsion, in violation of § 13A-6-63 of the Code of Alabama" and on the same trial found him guilty on an indictment charging that he engaged "in sexual intercourse" with the same female, by forcible compulsion, in violation of § 13A-6-61 of the Code of Alabama. Each crime is classified by subsection (b) of each Code section cited as "a Class A felony." The court sentenced said defendant in each case to imprisonment for ten years with the sentence in each case to run concurrently with the sentence in the other case.

There is no dispute between counsel for the respective parties on appeal as to the facts in the case, which are stated at length in the brief of counsel for appellant and are adopted by reference in the brief of counsel for appellee. We now endeavor to summarize such facts.

The alleged victim testified that she was staying at a friend's house on Highland Avenue in Montgomery, Alabama, that said friend was in a hospital at the time and "her friend's husband, her friend's child, her friend's brother and her own boyfriend were at the house on the night in question."

According to the alleged victim's further testimony, she left the house at about "1:30 or 2:00 in the morning" but that "it might have been only 12:30 when she left the house." She went from the house to the Majik Market, where she saw the defendant inside of the Majik Market. She testified that as she left the store, the defendant "left behind her," that the defendant "asked her if she wanted a ride and that she replied no, that she didn't live that far," then turned and kept walking. She testified that in the conversation between her and the defendant, it developed that they had seen each other before, particularly that she had waited on him as a cocktail waitress at Club Alabama.

According to further evidence as shown by the testimony of the alleged victim and Mr. Hall, she accepted his offer of a ride in Mr. Hall's automobile. We quote from her testimony in part as follows:

"Q. Okay. What occurred when you got close to the house where you were going?

"A. I told him he could stop and let me out here. I said this is where I live; you can stop.

"Q. Did he say anything to you at that time?

"A. Yes. He said you didn't really think I was going to let you out, did you?

"Q. What did you reply?

"A. I told him that I did. I said that I thought you would let me out or I wouldn't have gotten in the car in the first place.

"Q. Did he say anything about that?

"A. He said I'm not going to let you out, and he kept going.

"...

"Q. So, what did you do when he kept going?

"A. I just begged him. I said, look, just let me out and nothing else will be said. I just want to go home, and he said I'm not going to let you out. You can either put out or get out.

"Q. What did you say to that?

"A. I said if you would stop the car, I would get out. And he wouldn't stop. At that time, I reached over to see if I could get the door open even though the car was moving. It was the only thing I could think to do."

The defendant testified in detail that there was deviate sexual intercourse between him and the alleged victim and that he had sexual intercourse with her but that both incidents were consensual.

I.

The first issue presented in brief of counsel for appellant is thus stated:

"THE TRIAL COURT ERRED IN NOT ADMITTING EVIDENCE OF THE COMPLAINING WITNESS' SEXUAL ACTIVITY SHORTLY BEFORE THE EVENTS IN QUESTION."

In making this contention, counsel for appellant seeks to show that it is not in contravention of recent legislation in Alabama, Acts 1977, No. 251, p. 328, as now codified in Code § 12-21-203 under the subject of "Admissibility of evidence relating to past sexual behavior of complaining witness in prosecutions for criminal sexual conduct." In the brief of counsel for appellant is the following argument:

"In this case, Ms. Dutton indicated in a statement to Kathy Pruitt of the Montgomery Police Department (Defendant's Exhibit # 2), which was not admitted into evidence, that she had had sex with her boyfriend shortly before her encounter with Appellant. Such sexual behavior was within the res gestae and, therefore, evidence of such should have been admitted into evidence."

In commenting upon this contention of counsel for defendant on the trial of the case, the trial judge stated:

"Now, the Court will state, as I understand res gestae, it would be things that are connected in a time element to the crime itself. Okay. Now I'm saying that what sex she had a couple of hours prior to the rape or prior to getting into the automobile would not be part of the res gestae of the particular criminal element."

It is to be seen from that part of the transcript quoted above as to what was said by the trial judge and defendant's trial counsel that there was disagreement between them as to the time between the claimed sexual intercourse of the complaining witness with her "boyfriend" and the first of the two crimes for which this appellant was being tried. We have no reason to believe that we should not accept the statement of the trial judge as to the time involved, but whether we accept his statement or that of trial counsel, we are convinced that the trial court was correct in ruling that the sexual intercourse between the complaining witness and her "boyfriend" was not within the res gestae of either of the crimes charged against this appellant.

Counsel for appellant endeavors to show an additional reason in support of this issue by argument in his brief as follows:

"Second, Appellant asserts that there is an exception to the general prohibitions of Section 12-21-203, Code of Alabama when the sexual behavior is material and relevant to a motive for a complaining witness to falsely charge the accused. It is always permissible to cross-examine a witness to ascertain her interest, bias, prejudice, or partiality concerning the matters about which she is testifying. Anything which tends to show bias, unfriendliness, enmity, or inclination of a witness to swear against a party is admissible. Nichols v. State, 276 Ala. 209, 160 So.2d 619 (1964). Great latitude is to be allowed a party in an effort to show bias, unfriendliness, enmity, or inclination of an important witness to swear as to important issues in a criminal case. St. John v. State, 358 So.2d 812 (Ala.Crim.App.1978).

"...

"Appellant contended throughout the trial that he did not use force or threats against Ms. Dutton. His contention was that Ms. Dutton had voluntarily done everything, but needed an excuse for returning late. Evidence pertaining to Ms. Dutton's having had sex with her boyfriend shortly before meeting Mr. Hall would have shown a strong degree of intimacy between Ms. Dutton and her boyfriend which would indicate a motive for Ms. Dutton's allegation that Appellant had used force and threats against her in order to justify to her boyfriend her late return to the house caused by the car getting stuck in the ditch.

"Thus, Appellant contends that the trial court erred in granting the State of Alabama pretrial Motion in Limine (R. 19-20), denying Appellant's trial counsel's request to question Ms. Dutton about her having had sex with her boyfriend after she had stated that her sexual passions were not aroused (R. 66-68), prohibiting answers to Appellant's trial counsel's questions to Ms. Dutton about her reasons for not completing the test at the hospital (R. 97-99, 108)."

We agree with counsel for appellant as to the principles of law relied upon as stated in Nichols v. State and St. John v. State, but we disagree with counsel for appellant as to the application of such principles. Neither of the cited cases of Nichols v. State or St. John v. State furnishes a precedent in favor of appellant. The following is the strongest argument of brief of counsel for appellant on the point:

"Appellant contended throughout the trial that he did not use force or threats against Ms. Dutton. His contention was that Ms. Dutton had voluntarily done everything, but needed an excuse for returning late. Evidence pertaining to Ms. Dutton's having had sex with her boyfriend shortly before meeting Mr. Hall would have shown a strong degree of intimacy between Ms. Dutton and her boyfriend which would indicate a motive for Ms. Dutton's allegation that Appellant had used force and threats against her in order to justify to her boyfriend her late return to the house caused by the car getting stuck in the ditch."

We are convinced that to uphold this contention of appellant would pierce a hole in the statute, which has been repeatedly referred to as "the rape shield" statute or statutes, as other states have similar statutes. We find no good reason to believe that the legislative purpose in the enactment of such statutes in this and other states would be served by such a penetration of the shield that was meant to shield the female victim of forcible sexual perversion or rape against such penetrative efforts made by the appellant, which, if upheld, would likely lead to many other successful penetrative efforts. The statute was enacted for the benefit of victims instead of those charged with the heinous crimes involved.

II.

The second issue presented for our consideration is thus captioned in brief of counsel for appellant:

"WHETHER THE TRIAL COURT ERRED IN NOT ADMITTING ALL OF THE PARTICULARS OF THE STATEMENT AND THE ACTUAL STATEMENT GIVEN BY THE COMPLAINING WITNESS TO THE POLICE OFFICER SHORTLY AFTER THE EVENTS IN...