Jackson v. State
| Decision Date | 29 July 1980 |
| Docket Number | 1 Div. 107 |
| Citation | 390 So.2d 671 |
| Parties | Michael Rider JACKSON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
John W. Coleman, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., Helen P. Nelson, Asst. Atty. Gen., for appellee.
Michael Rider Jackson was indicted by the Mobile County Grand Jury for the offense of rape. Following a trial, the jury returned a verdict of "guilty of rape as charged in the indictment." The trial court set punishment at twenty-eight years imprisonment in the penitentiary.
The record indicates this offense occurred on the morning of March 29, 1979, at the home of the prosecutrix, a nine year old child. She and her thirteen year old brother, Jimmy, were staying home from school that day because of sickness.
A man, later identified as the appellant, appeared at the prosecutrix's house that morning inquiring whether he could clean the carpets in the house and whether the prosecutrix's parents were home. The prosecutrix stated her parents were not home and that she would have to check with Jimmy about having the carpets cleaned. The appellant then asked to use the telephone to call his boss. When the prosecutrix returned with Jimmy, the appellant was pretending to use the phone when he suddenly pulled out a pistol. The appellant grabbed Jimmy, slapped him, and told them both to lie on the floor. Jimmy lay on his stomach. The appellant told Jimmy he would kill him if he looked up.
The appellant proceeded to take all of the prosecutrix's clothes off and took off his pants and underpants. The appellant said "some cuss words" and threatened to hurt the prosecutrix. The prosecutrix then testified to the following:
"Q Now, after he took his pants off and his underpants off did you then see that part of his body that is different than yours?
A Sort of.
Q Let me ask you this, Allie, do you know if he took part of his body and put it inside your body?
A Yes. " (R.p. 137-138)
The prosecutrix testified the appellant was hurting her, she was bleeding, and she began to scream and yell. The appellant mouthed more cuss words and told Jimmy to make the prosecutrix "shut up." The appellant then got up, went into a bedroom, came out, wiped the prosecutrix with a wash cloth, and "done (sic) it again." Jimmy testified he could hear his sister screaming and moaning again but could not tell what the appellant was doing to her. When the appellant finished he told Jimmy that if anyone was told of this incident he would kill the prosecutrix. Jimmy testified he saw that his sister was bleeding in the area below the stomach.
The prosecutrix made an in-court identification of the appellant as the man who forcibly ravished her. In addition, she testified to picking the appellant's picture from several pictures shown to her by the police as "The man that raped me." Jimmy also made an in-court identification of the appellant as the culprit.
The appellant denied committing the offense. The evidence for the appellant attempted to establish an alibi. When there is a conflict between the State's case and the appellant's alibi a jury question is presented. Crow v. State, Ala.Cr.App., 365 So.2d 1254, cert. den., Ala., 365 So.2d 1256 (1979).
At the conclusion of the State's evidence the appellant made a motion to exclude the evidence on the ground that penetration was not proven. He contends error from the denial of this motion.
An essential element of the offense of rape is an actual penetration of the female sex organ by the male sex organ. Reynolds v. State, 274 Ala. 171, 146 So.2d 85 (1962). "(P)enetration to any particular extent is not required, ... but some degree of entrance of the male organ within the labia pudendum is essential." Harris v. State, Ala.Cr.App., 333 So.2d 871 (1976). The question of whether such penetration is accomplished is a factual determination for the jury. Long v. State, Ala.Cr.App., 370 So.2d 354 (1979).
From the testimony of the prosecutrix we find the following:
"Q Now, after he took his pants off and his underpants off did you then see that part of his body that is different than yours?
A Sort of.
Q Let me ask you this, Allie, do you know if he took part of his body and put it inside your body?
A Yes.
Q And when the man did that did it hurt you?
A Yes."
Q After the man put that part of his body into your body were you hurt at all?
A Yes.
Q Were you bleeding?
A Yes.
Q Now, after this happened what happened next?
A He went back in the bedroom and he came out and done it again.
Q Now, while he was gone did you stay in here?
A Yes.
Q So all you know is he went back into this part of the house?
A Yes and got a washcloth and wiped me.
Q Did he wipe you off with a cloth?
A Yes.
Q Okay, and then you say he did it again?
A Yes.
Q And by doing it again you mean that he took part of his body and put it in your body?
A Yes.
Q Did he hurt you a second time?
A Yes. " (R.p. 137-139)
As previously pointed out in this opinion, the prosecutrix specifically testified that the appellant was "The man that raped me."
The State's expert witness, Alilee Pillman, Director of the Mobile Police Department Crime Laboratory, testified she performed several experiments and tests on evidence recovered from the crime scene. Her examination of a pair of panties disclosed the presence of large blood clots and semen stains. An examination of a washcloth also revealed the presence of semen stains and blood stains.
Dr. William Pasley, an obstetrician-gynecologist, testified he examined the prosecutrix on the afternoon of March 29, 1979. She was experiencing vaginal bleeding at the time of the examination. Her injuries included a second degree perineal tear and a second degree vaginal tear. He explained these injuries as follows:
"And by a second degree (vaginal tear) I mean that the tear extended through the skin of the vagina into the muscle of the vagina and the tear started out at the vaginal introitus, which is the opening to the vagina, went up the left lateral sidewall of the vagina, up to the top on the left, extended past the top of the vagina into the left broad ligament." (R.p. 165)
At the conclusion of the State's direct examination of Dr. Pasley, the following occurred:
A review of the facts clearly indicates that the jury in the instant case could reasonably infer that there had been a penile penetration.
A preliminary hearing was held for this case on Monday, April 30, 1979. On the Friday before the hearing the district attorney took the prosecutrix and her family into the District Courtroom where preliminary hearings are held to familiarize the prosecutrix with the surroundings. The district attorney placed the prosecutrix in the witness chair and explained to her the procedures of a trial. He pointed out to her where the judge would be sitting, that several people would be sitting at the tables in the courtroom, and the approximate area where the appellant would be sitting at those tables. From the record:
Cross-examination of the prosecutrix by the defense attorney.
"Q All right. And did not Mr. Galanos tell you that the man who raped you or did that to you was going to be sitting in a certain chair or one of two chairs in the courtroom?
A Yes.
Q All right, and when you came into the courtroom Michael Jackson was standing behind one of those chairs rather than sitting in it, is that correct?
A Yes.
Q 'All right, did he tell you anything about where the man would stand or anything like that?'
Q 'No, sir, we came over here yesterday at Friday and we practiced and Chris said he might be sitting over in those two chairs over there.' " (R.p. 142, 146-147)
The district attorney also explained to the prosecutrix that she would be asked questions and that she must answer those questions truthfully. 1
The appellant's attorney made no objection to the prosecutrix's in-court identification of the appellant at the preliminary hearing nor did he make any pre-trial motions or objections to the in-court identification.
During the trial of this case the prosecutrix was called as the first witness. An examination...
To continue reading
Request your trial
-
Freeman v. State
...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 inferre......
-
King v. State
...is a question of fact to be determined by the jury." Rowe v. State, 421 So.2d 1352, 1356 (Ala.Cr.App.1982); see also, Jackson v. State, 390 So.2d 671 (Ala.Cr.App.), writ denied, 390 So.2d 675 In the instant case, the jury not only had the testimony of the four-year-old victim but also that ......
-
Ballard v. State
...cert. denied, 414 U.S. 841, 94 S.Ct. 96, 38 L.Ed.2d 77 (1973); Behel v. State, 390 So.2d 662 (Ala.Crim.App.1979), cert. denied, 390 So.2d 671 (Ala.1980); Hollander v. State, 418 So.2d 970 (Ala.Crim.App.1982). This search was validly consented to by the appellant, after proper Miranda warnin......
-
Ex parte Hammond
...74 L.Ed.2d 515 (1982); Ex parte Durden, 394 So.2d 977 (Ala.1981); Behel v. State, 390 So.2d 662 (Ala.Crim.App.1979), cert. denied, 390 So.2d 671 (Ala.1980); Donahoo v. State, 371 So.2d 75 (Ala.Crim.App.), cert. denied, 371 So.2d 79 To be sure, Alabama has even declared that the defendant's ......