Kemp v. State, 1 Div. 217

• Decision Date: 24 February 1987
• Docket Number: 1 Div. 217
• Citation: 516 So.2d 848
• Parties: Bill KEMP v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 848

516 So.2d 848

Bill KEMP v. STATE.

1 Div. 217.

Court of Criminal Appeals of Alabama.

Feb. 24, 1987.

Rehearing Denied April 14, 1987.

Certiorari Denied July 31, 1987

Alabama Supreme Court 86-969.

On Return to Remand Oct. 13, 1987.

Franklin D. Lee, Jackson, for appellant.

Charles A. Graddick, Atty. Gen. and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

Appellant Kemp was found guilty of sodomy in the first degree for performing oral sex on a thirteen-year-old boy and was sentenced to life imprisonment. He raises three issues on appeal.

The state's evidence indicated that during a school recess the 13-year-old victim was accosted by the appellant, who asked him for help. The boy had met the appellant at a video arcade a few months earlier. The boy left with the appellant and they began walking towards the appellant's trailer. On the way, the appellant pulled a knife and menaced the boy with it. Upon arriving at the trailer, the appellant forced the boy inside. He then gave the boy some "home brew" and showed him some pornographic magazines. With the knife in his hands, the appellant then forced the boy back into a bedroom and made him remove his clothes. The appellant then removed his own clothes and forced the boy to lie down beside him. The victim testified that at this time he was not sure where the knife was. The appellant then performed oral sex upon the boy and told the boy that if he tried to run away he would kill him. They both dressed and went back into the living room of the trailer. The appellant again had the knife in his hand. Soon thereafter he forced the boy back into the bedroom, where he again performed oral sex upon him. When they next returned to the living room, appellant Kemp threatened to stab the boy if he tried to leave. He stabbed the sofa arm with the knife to demonstrate what he might do to the victim. The victim testified he was compelled to accompany Kemp, first to the house of an acquaintance, then in the direction of a hospital. On the way, a police patrol car drove by and the victim, seeing it, ran from Kemp and jumped into the patrol car. He related to the officer enough of what had happened for the officer to arrest the appellant. After the appellant was read his rights, the officer asked the appellant if they could go into his trailer. The appellant consented and gave the officer the keys to the trailer. The officer then went to the trailer and searched the trailer, where he found the knife and other evidence which tended to corroborate the boy's recitation of the facts.

I

The appellant argues that he was denied a fair trial because of the systematic exclusion of blacks from the jury. In this case, the appellant struck one black and the state struck the remaining seven black veniremen. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), requires that the state provide a neutral reason for striking the black members of the venire when the defendant is black. Pursuant to our decision in Smith v. State, [Ms. 6 Div. 5, February 10, 1987] (Ala.Cr.App.1987), we remand this case for the prosecutor to come forward with race-neutral explanations for his peremptory strikes of the seven black members of the venire. If the prosecutor is unable to set out race-neutral explanations, the appellant is entitled to a new trial. Should the trial court determine that there was no purposeful discrimination, a return shall be filed with this court containing the evidence at this hearing and the trial judge's finding following the hearing.

II

The appellant asserts that the trial court committed reversible error when it overruled his motion for mistrial. The motion was based on the state's displaying, in front of the jury, a knife that was ruled inadmissible because of violation of appellant's discovery motion. The appellant also asserts that the knife was the fruit of an illegal search and seizure. The appellant further argues that the trial court erred to reversal when it allowed testimony concerning the knife from the police officers who conducted a search within appellant's trailer.

Consent to a search removes the need of a warrant; consent is one of the recognized exceptions to the requirement for a search warrant. Dixon v. State, 476 So.2d 1236 (Ala.Cr.App.1984); Delarosa v. State, 384 So.2d 876 (Ala.Cr.App.), cert. denied, 384 So.2d 880 (Ala.1980); Barclay v. State, 368 So.2d 579 (Ala.Cr.App.), cert. denied, 368 So.2d 581 (Ala.1979), cert. denied, 444 U.S. 928, 100 S.Ct. 269, 62 L.Ed.2d 185 (1979); Welden v. State, 57 Ala.App. 379, 328 So.2d 630 (1976). The prosecution always has the burden of showing that the consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 792 (1968). The prosecution, however, does not have to say to the person that he has the right to refuse consent. Schneckloth v. Bustamonte, 412 U.S. 218, 231, 93 S.Ct. 2041, 2049, 36 L.Ed.2d 854 (1973). The test to determine whether consent was voluntary or not is the totality of the circumstances. Bustamonte, id. ; Scott v. State, 409 So.2d 978 (Ala.Cr.App.1981).

There is no requirement that the officer tell the suspect he has the right to refuse to let him search, in order for the consent to be voluntary; "rather it is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced." Bustamonte, 412 U.S. at 233, 93 S.Ct. at 2050. Since the search was lawful, the testimony of the police officers concerning the fruits of the search is, of course, admissible. The evidence obtained from a lawful search also is admissible. However, in this case, the trial court prevented the prosecution from introducing the knife into evidence because it had been concealed from the defense in violation of a discovery order. This was a proper sanction imposed for a violation of Rule 18.5, Alabama Temporary Rules of Criminal Procedure. That rule provides:

"18.5 Relief for noncompliance; reciprocal discovery.

"(a) Noncompliance. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection; grant a continuance if requested by the aggrieved party; prohibit the party from introducing evidence not disclosed; or enter such other order as the court deems just under the circumstances."

The appellant asserts that since the knife had been displayed on counsel's table in front of the jury, the damage had been done. The appellant argues that when the trial court later "prohibited the party from introducing evidence not disclosed," per the rule violation, the state's previous display of the weapon should have resulted in a mistrial. We disagree.

The court gave cautionary instructions that the jury was to disregard the knife and that it was excluded from evidence. At that juncture, that was all that the court could do as a practical matter. We find therefore that such instructions sufficiently "cured" the problem caused by the jury's having seen the evidence not admitted. Not only was no error committed by this procedure, but we have gone further in other cases and held that even when illegal evidence was received into evidence, the court could cure such error by withdrawing it from the evidence and instructing the jury to disregard it. Simas v. State, 410 So.2d 139 (Ala.Cr.App.1981); Pelham v. State, 125 So. 688, 23 Ala.App. 359 (1930). We recognize that proposed exhibits are commonly displayed within view of the jury in the process of being offered into evidence. The mere fact that such an exhibit is not admitted into evidence after being seen by the jury gives no ground for mistrial. No error occurred regarding the knife.

III

The appellant also asserts that the trial judge erred in denying appellant's motion for judgment of acquittal. The appellant asserts that the state did not prove a prima facie case. § 13A-6-63, Code of Alabama 1975, lists the requirements of first degree sodomy as follows "(a) A person commits the crime of sodomy in the first degree if:

"(1) He engages in deviate sexual intercourse with another person by forcible compulsion; or

"(2) He engages in deviate sexual intercourse with a person who...