Kelley v. State

• Decision Date: 15 May 1992
• Docket Number: CR-91-427
• Citation: 602 So.2d 473
• Parties: Tyrone KELLEY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 473

602 So.2d 473

Tyrone KELLEY v. STATE.

CR-91-427.

Court of Criminal Appeals of Alabama.

May 15, 1992.

Rehearing Denied June 12, 1992.

Certiorari Denied Aug. 21, 1992

Alabama Supreme Court 1911508.

Clyde E. Jones, Birmingham, for appellant.

James H. Evans, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, Tyrone Kelley, was convicted of rape in the first degree, a violation of § 13A-6-61, Code of Alabama 1975. He was sentenced to 25 years' imprisonment.

The appellant presents four issues on appeal.

I

The appellant initially contends that the guilty verdict was contrary to the great weight of the evidence. He also contends that the state failed to establish a prima facie case, arguing that there was no showing of forcible compulsion. Section 13A-6-61(a)(1), Code of Alabama 1975, provides: "A male commits the crime of rape in the first degree if ... [h]e engages in sexual intercourse with a female by forcible compulsion...."

The state's evidence tended to show that, on the evening of December 16, 1990, the victim was driving on County Road 11 in Shelby County. In order to avoid an oncoming car, she swerved off of the road and drove down an embankment. She got out of the car and climbed up to the road, where she signalled a car, driven by the appellant, for assistance. When the appellant stopped, the victim asked him to telephone a friend for her. After he agreed to do so, the victim returned to her car to retrieve her purse so that she could write down her friend's telephone number.

When the victim got out of her car, she turned around and discovered that the appellant had followed her down the embankment. When she tried to return to the road, the appellant grabbed her from behind and forced her to the ground, face down. The appellant then climbed on top of her, turned her over, and pinned her down with his left arm, placing his left hand around her throat. The appellant told the victim, who was screaming and struggling, to "shut up or he would kill" her (R. 28). He then unbuttoned her pants, undid her zipper, and pulled her pants down with his right hand, telling her to "shut up and take it" (R. 30). The appellant then unzipped his own pants and had intercourse with her. Afterwards, the appellant picked her up, kissed her, threw her back to the ground, and walked away.

After the appellant left her, the victim began to cry and to scream for help. Minutes later, a driver passing by saw her car and stopped to offer assistance. After being helped back to the road, the victim saw the appellant, who whispered to her to not "tell anyone or I'll kill all of you" and "to zip [her] pants up" (R. 34).

Deputy Russell Yawn with the Shelby County Sheriff's Department arrived at the scene in response to a call regarding the accident. After the victim told him that she had been raped by the appellant, Yawn arrested the appellant at the scene.

The victim was taken to the Shelby Medical Center by a friend who had been called to the scene. The nurse who examined the victim stated that she had scratches and bruises on her lower back, bruises on her neck, and white stains on her buttocks. She also testified that the victim was emotionally upset. Although she did not know whether the victim had been raped, the nurse could testify that the victim had engaged in intercourse.

The appellant disputes the evidence. The appellant contends that the victim's testimony was contradicted on several occasions by her own testimony at the preliminary hearing, by the testimony of the man who came to her aid after the alleged rape, by the testimony of Deputy Yawn, and by the testimony of the nurse who examined the victim at the Shelby Medical Center. The appellant also argues that the victim's testimony contradicted a statement that he made to Yawn at the scene alleging that the victim consented. Of course, the testimony of witnesses to an event will vary; such variation is evidence that the testimony was unrehearsed.

Further, the appellant contends that the victim did not tell anyone at the scene that she had been raped until the police began to suspect her of driving under the influence. This fact does little to weaken the the victim's testimony considering his alleged threat to kill the victim. The appellant also argues that it was impossible for him to have held the victim down with one arm and to have removed her pants and unzipped his pants with the other. We find that that act is well within the range of possibility. Additionally, the appellant contends that no one noticed the bruises on the victim's neck (allegedly from the appellant's fingers) until after her friend had taken her to the medical center approximately two to three hours after the alleged rape.

The appellant also argues that the nurse who examined the victim at the medical center had no basis for her testimony that the victim could have been raped. Finally, the appellant elicited the testimony of various persons attesting to the victim's reputation for untruthfulness and to the appellant's good character.

All of these contentions advanced by the appellant presented questions for the jury, go to the weight of the evidence, and will not support a reversal. The "weight of the evidence" refers to " 'a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.' " Johnson v. State, 555 So.2d 818, 820 (Ala.Cr.App.1989) (quoting Tibbs v. Florida, 457 U.S. 31, 37-38, 102 S.Ct. 2211, 2216, 72 L.Ed.2d 652 (1982)). "[I]t is not the province of this court to reweigh the evidence presented at trial." Watkins v. State, 565 So.2d 1227, 1231 (Ala.Cr.App.1991). Conflicting evidence is a matter for the jury's consideration. Smith v. State, 583 So.2d 990 (Ala.Cr.App.), cert. denied, 583 So.2d 993 (Ala.1991); Johnson, supra.

Based on the facts as set out above, the jury's verdict "was [not] palpably contrary to the great weight of the evidence and manifestly wrong." Watkins, 565 So.2d at 1231.

Further, after reviewing the facts of this case, we hold that there was sufficient evidence to submit the question of "forcible compulsion" to the jury. See, e.g., Ayers v. State, 594 So.2d 719 (Ala.Cr.App.1991); Parks v. State, 565 So.2d 1265 (Ala.Cr.App.1990); Smith v. State, 545 So.2d 198 (Ala.Cr.App.1989).

Thus, the circuit court did not err.

II

The appellant also contends that the circuit court denied him a fair trial by denying his motion under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), he argues that the state used peremptory strikes in a racially discriminatory fashion and thereby violated his equal protection rights.

In Batson, the Supreme Court held that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." 476 U.S. at 89, 106 S.Ct. at 1719. See also Ex parte Branch, 526 So.2d 609 (Ala.1987). When a defendant makes a timely Batson motion and establishes a prima facie case of discrimination, the state must produce a race-neutral explanation for each strike of a minority veniremember. See, e.g., Avery v. State, 545 So.2d 123 (Ala.Cr.App.1988). The court's ruling on the Batson motion will be reversed only if it is clearly erroneous. Jackson v. State, 549 So.2d 616 (Ala.Cr.App.1989).

The appellant in this case is a black male charged with raping a white woman. The record reveals that the state used three of its peremptory strikes to remove blacks from the venire, leaving one black woman to sit on the jury. After the state justified each of the strikes, the circuit court denied the appellant's Batson motion.

The prosecution cited the following reasons in support of its strikes of black veniremembers:

Juror number 65: Was single and worked "at EBSCO where two of the State's witnesses work. K.G. [who was called by the defense] works there and P.W. also works there...." (R. 15.)

Juror number 77: Had a criminal history, was single, and acted like he was asleep.

Juror number 102: Had a conviction for driving under the influence, indicated that he might be related to the defendant, and stated that he might have some difficulty with the case.

Further, the prosecution removed all veniremembers, regardless of race, who stated that they were single.

Striking a minority veniremember who has prior convictions, including one for driving under the influence, is a race-neutral reason. See, e.g., Yelder v. State, [Ms. 3 Div. 212, Oct. 11, 1991], 1991 WL 238088 (Ala.Cr.App.1991); Cowan v. State, 579 So.2d 13 (Ala.Cr.App.1990); Leonard v. State, 551 So.2d 1143 (Ala.Cr.App.1989). The fact that a veniremember appears to be asleep or inattentive is also a valid race-neutral reason for exercising a peremptory strike. See, e.g., Mitchell v. State, 579 So.2d 45 (Ala.Cr.App.1991), cert. denied, 596 So.2d 954 (Ala.1992); Strong v. State, 538 So.2d 815 (Ala.Cr.App.1988); Smith v. State, 531 So.2d 1245 (Ala.Cr.App.1987). Further, the fact that a veniremember is single may be a race-neutral reason for striking a prospective juror if that reason is related to the facts of the case. Under the facts of the present case being single was a valid reason for striking the prospective juror, especially when the state has "struck non-black jurors for substantially the same reason. Such evidence of neutrality may overcome the presumption of discrimination." Bedford v. State, 548 So.2d 1097, 1098 (Ala.Cr.App.1989). See also Harris v. State, 545 So.2d 146 (Ala.Cr.App.1988); Mathews v. State, 534 So.2d 1129 (Ala.Cr.App.1988); Pritchett v. State, 548 So.2d 509 (Ala.Cr.App.1988); Avery v. State, 545 So.2d 123 (Ala.Cr.App.1988). A veniremember's indication that the member might have problems being on the jury in the case is also a race-neutral reason for removing that person...