Humphrey v. State

• Decision Date: 29 October 1974
• Docket Number: 8 Div. 492
• Citation: 54 Ala.App. 62,304 So.2d 617
• Parties: Dave Mack HUMPHREY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 617

304 So.2d 617

54 Ala.App. 62

Dave Mack HUMPHREY v. STATE.

8 Div. 492.

Court of Criminal Appeals of Alabama.

Oct. 29, 1974.

Rehearing Denied Nov. 26, 1974.

Newton & Coar, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was convicted of rape and his punishment fixed at thirty-five years in the penitentiary. The judgment of the court was in accordance with the verdict of the jury. Appellant was found to be indigent, and counsel was appointed to represent him both at arraignment and trial under a plea of not guilty. He was furnished a free transcript, and trial counsel was appointed to represent him on appeal. Counsel was notified that appellant had Retained a law firm in Birmingham to handle the appeal.

This is another interracial rape case that is fast becoming commonplace in the unrelenting rise in the crime rate in this state and nation.

The prosecutrix was a student at the University of Alabama at Huntsville. On January 3, 1973, around 1:00 p.m., she drove her automobile to the apartment of her boyfriend at 4311 Holmes Street near the campus of the University to study for a history examination. Her boyfriend left the apartment unlocked as he knew she was coming there to study. After an hour or so, she got sleepy and decided to take a nap on her boyfriend's bed. She was fully clothed as she went to sleep. Her outer clothing consisted of an undershirt, sweater, blue jeans and socks. About an hour later, her boyfriend and a friend of his came in the apartment and stayed about five minutes and left to go pay the rent. She remained in bed and was dozing. She heard someone come in the apartment and walk around. This person opened the bedroom door, and she pretended to be asleep. She was fully awakened when this person touched her shoulder. She saw a black man standing by the bed. The man asked her if she had any dope and she said, 'No, wait until Bill comes back.' The man grabbed the prosecutrix by the arms and pulled her to a half sitting position. He told her to take her pants off and she said, 'You are crazy.' She was frightened and terrified and he told her again to 'Take your pants off.' She unbuttoned the top button to her blue jeans and was looking toward the door to see if she could escape. She started to get up, and the man put his hand over her mouth. He grabbed her blue jeans and snatched them off and in so doing popped a button off. Then he took her underpants off and raped her. During the intercourse, he told her he had never had a white woman and just wanted to try one. According to the prosecutrix the man climaxed in about thirty seconds and ran out of the apartment.

She got dressed and went out the back door, got in her car and started to police headquarters and decided that would take too long. She drove to the University and got someone to call the Police Department. In a few minutes, a detective and two patrolmen came to the office at the University where she was waiting. She told the officers what had happened to her and gave them a description of her assailant. She told the officers the black man was in the bedroom with her at least four to five minutes; that she got a good look at his face, but mostly from an angle in broad daylight. She described her assailant as being of light brown complexion and having a mole on his right cheek. He was of medium build and wearing dark clothes. He had an afro type hair style in a conservative sort of way. Prosecutrix' boyfriend drove her to the hospital where she had to wait a couple of hours before a doctor came to examine her. A gynecologist examined her at 7:45 that night and testified, 'I did a pelvic examination and found no evidence of trauma to the vaginal area. I took two smears for spermatozoa and she had no other complaints except some abdominal pain.' He testified that he found sperm in the urine and in his opinion she had had intercourse within twelve hours prior to his examination.

There had been a series of such rapes in Huntsville during a period of several months, both before and after prosecutrix was raped. Appellant had become a suspect in a number of these offenses. He was picked up by two detectives at a grocery store near the campus of the University and was carried to headquarters for interrogation. On the way to the station house, he was given the Miranda rights and warnings by reading him a card now carried by all police officers. He was not questioned on the way to headquarters.

At the station house, another police officer told appellant that they were investigating several rapes that had occurred recently and that he was a suspect. This officer further told appellant that a lineup would be conducted, and he was going to be placed in the lineup with a number of other black males who closely resembled him as to height, weight, dress and color. Appellant asked what would be the result of this lineup, and he was told that witnesses and the rape victims would be brought to view the people in the lineup and if he was identified as the offender, he would be charged in each case, and if he was not identified, he would not be charged in any case.

From the record:

'Mr. Humphrey stated to me or asked me rather if he could make a phone call. I advised him he could. I asked him if he knew his number or did he need a phone book, he said he knew the number he wanted to call, that it was A & M College, and he wanted to talk to Dean Bright who was his golf coach. I told him he could, and he said, 'If I can talk to my coach, I don't think you will need a lineup.' And he made the phone call, talked to someone on the other end and he told me it was Dean Bright and he was coming to Police Headquarters.'

The suspect said he wanted to talk to Dean Bright, and that he did not want a lawyer.

Following this telephone call appellant was carried to another office to await the arrival of Dean Bright, and no other questions were asked him by the officer. Bright came to headquarters and had a conversation with the officer out of the presence and hearing of the suspect, and,

'I told Mr. Bright in reference to some of our cases we were investigating, and I told Mr. Bright I was wanting to talk to Mr. Humphrey and Mr. Humphrey had requested to talk to him, and I told him our suspicions in the cases, that he was a suspect in the cases and that I was going along with his request to allow him to talk to him. And he asked could he talk to him alone for a few minutes and I gave him that permission. We went into the room where Dave Mack was and Mr. Bright sat down and I sat down. And the first thing I did after sitting down was take out a card that I use to read a person their rights under the Constitution.'

After reading appellant the Miranda rights and warnings, the officer asked him if he knew his rights and got an affirmative answer. The officer then said, 'with these rights in mind, do you wish to talk to me?' Appellant said he wanted to talk to Dean Bright first. The officer presented to appellant a printed rights waiver form and told him to look over the form along with Dean Bright while he was out of the room and decide in the presence of the Dean if he wanted to sign the form and give him a statement in connection with the cases. The officer then left the room.

Fifteen to twenty minutes later, Bright came out into the hallway and told the officer that appellant was ready to talk to him. The officer and Bright returned to the interrogation room and the officer asked appellant if he understood his rights and if he wished to make a statement. Appellant said he understood his rights and was ready to talk. The officer said he wanted appellant to sign the form before he made any statements. Bright told the appellant to sign the form and tell the officer the truth. The waiver of rights form was signed by appellant and witnessed by the officer and 'Gene Bright, Dean of Men.' Whereupon, appellant made an oral confession to the officer in the presence of Dean Bright.

The officer asked Humphrey to state in his own words the cases or case that he was involved in, and he replied, 'I did that one on Holmes Avenue, I parked my car about 200 yards from the place, I went in the back door, the girl was alone. I raped her.' The officer asked him if he reached a climax in this girl and he said, 'I don't quite understand what you mean by reach a climax,' and the officer said, 'possibly the words you use may be different from mine, what I am talking about--maybe Dean Bright can help in this area.' Dean Bright spoke up and said, 'Dave, did you _ _ in the girl?' Dave said, 'I used a _ _' Humphrey went on to say that he raped the girl, he didn't hurt her, he got up and left, got in his car and left the scene.

In the presence of Bright, appellant continued, 'I went into the house on East Clinton Street about 1:30 in the morning. I went upstairs.' He said he saw this girl laying in the bed and he was going to rape her in bed. He heard some movement and thought someone was coming up the stairs. He got scared and ran by someone as he was coming down the stairs. He went back out the window and left the scene.

During this same interview the officer asked appellant if he was involved in any of the other cases mentioned by the officer and he said these were the only two cases in which he was involved. The officer then told appellant that they were going to hold a lineup, and that if the victims in these other cases picked him out in the lineup he would be charged in each individual case. The officer further told appellant, and Dean Bright, that for the present he would be officially charged with two counts, one for rape at the Holmes Avenue address, and one for first degree burglary at the East Clinton Avenue address. Dean Bright asked about the bond procedure, and the officer said he did not know anything about the bonds. He said warrants would be issued in these two...