Hogue v. State

• Decision Date: 01 April 1975
• Docket Number: 6 Div. 766
• Citation: 312 So.2d 86,54 Ala.App. 682
• Parties: Gary D. HOGUE, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 86

312 So.2d 86

54 Ala.App. 682

Gary D. HOGUE, alias v. STATE.

6 Div. 766.

Court of Criminal Appeals of Alabama.

April 1, 1975.

Rehearing Denied April 22, 1975.

Zeanah, Donald, Lee & Williams and Wilbor J. Hust, Jr., Tuscaloosa, for appellant.

William J. Baxley, Atty. Gen., Montgomery, and James L. Hunt, Sp. Asst. Atty. Gen., Tuscumbia, for the State.

TYSON, Judge.

The Grand Jury charged Gary D. Hogue in a three count indictment with assault with intent to ravish, assault with intent to rob, and assault with intent to murder one Ann Burnett. The Jury found the appellant guilty of assault with intent to ravish, and the court then entered judgment, setting sentence at twenty years imprisonment in the penitentiary. The appellant's motion for new trial was overruled.

The indictment arose from an incident which occurred on U.S. Route I--59 in Tuscaloosa County, Alabama, on December 5, 1973. Deputy Sheriff Hubert Hallman testified that, starting on December 6, 1973, his department conducted a patrol on I--59 between the points known as the Caffee Junction Exit and the Brookwood Exit.

The officers were looking for an orange Dodge or Plymouth. While on patrol, on December 12, 1973, at 3:25 p.m., Deputy Hallman saw what he described as a 1968 orange Plymouth on an overpass over I--59 at the Caffee Junction Exit. The car proceeded on the overpass and then continued in the north bound lane of I--59 toward Jefferson County. Officer Hallman stopped the car and said that he looked inside the car and saw a blue wiping towel, a blue-gray windbreaker jacket, a lunch box, a pair of safety shoes, and umbrella, and a hammer. The driver of this car was the appellant, who appeared to have been drinking. Appellant was taken to the Tuscaloosa County Jail where pictures of the interior and exterior of the car were taken. These pictures were introduced as evidence. Deputy Hallman also said that the jacket and towel were given to the State Toxicologist for analysis. He further testified that a search was made of the interior of the car and fingerprint tests were conducted.

Officer Hallman had also investigated the incident on December 5, 1973, at 3:35 p.m. He was taken by Mrs. Ann Burnett from the Brookwood Exit to the point where she said she was accosted. The spot was 2.2 miles from the Brookwood Exit. Mrs. Burnett knew the spot because the man who attacked her left her umbrella there.

The court then elicited from Deputy Hallman that the Caffee Junction Exit is northeast of the Brookwood Exit and they are twelve miles apart.

Mrs. Ann Burnett testified that she is a registered nurse, living in Northport, Alabama, and the mother of three children. She had a leave of absence from her job and had been attending school at the University Hospital in Birmingham, on December 5, 1973. She left Birmingham at 3:30 p.m. to return home. She was traveling on I--59 between the Caffee Junction Exit and the Brookwood Exit when a man driving an orange Dodge or Plymouth pulled up beside her. She stopped her car because the man had indicated to her that something was wrong. He stopped behind her, walked up to her car, and told her that something was wrong with her muffler. She did not get out while he looked under her car. He asked her for something to use to tie the muffler. She replied that all she had was an umbrella, and then got out to look herself. He was holding a blue rag up under the car. He told her he could use the umbrella to tie it. She gave him one of the prongs. He then grabbed her. He was behind her, but she had a good opportunity to see his face. He had her by the left arm which was bruised as a consequence. He told her, 'Get in the car or I will kill you.' Mrs. Burnett screamed, and at that moment noticed that he had a knife in his hand. He pushed her to his car, and she begged for him to release her. He replied that all he wanted was her money. She told him that it was in her car and for him to take it and let her go. However, he kept pushing her toward his car. She said that he opened the door on the passenger side of his car, and that she was still begging to be released. She stated that the next thing she knew she was running down the side of the road. A car was coming and it stopped to let her in.

She further testified that she remembered that the man who attacked her had green eyes and that they were bloodshot. She also said that she remembered that his hands were large, strong, and were clean, but had grease in the creases.

Mr. Pilkerton, the driver of the car which had stopped, drove her down the road toward Tuscaloosa. When they reached the Brookwood Exit they saw a police radar set-up and stopped there.

On December 12, 1973, Mrs. Burnett testified that she attended a police line-up at the Tuscaloosa County Jail. She immediately recognized appellant as the man who stopped her and forced her back to his car.

On cross-examination she stated that the incident occurred between 4:00 p.m. and 4:30 p.m. She said that on December 5, 1973, she had told the police that the man had worn a brown jacket, but that she wasn't sure of the color. She also said she thought the license tag of the man's car began with the number 63. On recross-examination, a photograph of the orange car was exhibited to her which revealed the license tag number 58--18458.

Albert Pilkerton testified that he saw Mrs. Burnett running down I--59 on December 5, 1974. He stated that he stopped his car to render her assistance, and as he did so he saw an orange Plymouth or Dodge automobile 'fishtail' out onto the highway from the side of the road. He testified that Mrs. Burnett was hysterical, and that he drove her down to the Brookwood Exit where he noticed some police engaged in a radar set-up. He said that he was not able to identify the person driving the orange car.

At this point in the trial a discussion was held in the judge's chambers, and out of the presence of the jury. Appellant objected to the testimony of the next witness, Miss Neva Watts. She was to testify to an incident which occurred on November 11, 1974, when she was stopped by a man in an orange Dodge or Plymouth on I--59. The man made her perform unnatural sex with him. Appellant allegedly was this same man. Appellant objected to her testimony, stating that identity could not be proved in this manner, and also that the offense committed against Miss Watts was not of a like nature to that offense which appellant allegedly committed against Mrs. Burnett. The State pointed out the similarities of the two incidents, and the Court agreed that the incident involving Miss Watts was admissible to prove the intent involved in Mrs. Burnett's incident. The trial court rules that Miss Watts' testimony was admissible, and that he was of the opinion that the identical sex crime need not be shown.

The State then called Miss Neva Watts to testify. On November 11, 1974, she was a student at the University of Alabama in Tuscaloosa. She had been at her home in Lineville, Alabama, for the weekend and was returning to school via I--59. At 4:30 p.m., about five miles before the Brook-wood Exit, a man in an orange Dodge or Plymouth pulled up beside her automobile and indicated to her that something was amiss with her car. She stopped her car along the shoulder of the road. He stopped behind her. Miss Watts got out of her car, as did the man who had signaled to her. He first said that he suspected that something was wrong with her tire. He then told her that something had gone wrong with her muffler and asked her if she had something with which to tie it. She said she had nothing, whereupon he asked her to go back to his car to secure a hammer. She went back to his car and opened the passenger door. At that moment she turned around to find him behind her with a knife in his hand.

He told her to get into the car or he would kill her. He also told her that all he wanted was her money. She said that she had $5.00 in her car. He then told her that he would driver her down the road, drop her, and return for the money. He then told her to get down on the floorboard of the car, and he slid over her to get under the steering wheel. He tied her hands as they drove down the road. She stated that the car's interior was black, that the gear shift lever was on the steering column, and that there was a solid front seat.

He drove for about two miles. He kept telling her to keep her head down or else he would kill her. At this time she told him that she thought he told her he would let her out. He continued to drive and asked her if he would not kill her, would she do anything he asked. She said that she would, and stated that he still had the knife on her. He stopped on the side of the road and asked if she would go to a clearing on the side of the road. She said she could not get over a fence there. The man then asked her if she would do anything he wanted in the car. He then drove on and made her get back onto the floorboard. He turned off on an exit to the highway. Miss Watts later determined this to be the Brookwood Exit. He turned left on the overpass and then right onto Route 11. He said if she had unnatural sex with him, he would take her back to her car, if not, he would kill her. He then made her lie down on the seat with her head in his lap and forced her to take his private part into her mouth. She further testified that on that day she was wearing a pants suit and a turtle neck sweater. While they were driving down Route 11, he unbuckled her pants and slipped her panties down. He then placed his hand on her private part.

Miss Watts testified that they had driven about three or four miles down the road and that it was about 4:45 p.m. and still bright. He then drove her back to her car. On the way back, he told her that he was a hardened killer and that if she told the police, either he or his friends would kill her. He let her out of the car on the north bound side of I--59, and she crossed...