Lawrence v. State

• Decision Date: 16 August 1983
• Docket Number: 8 Div. 777
• Citation: 441 So.2d 1021
• Parties: Donald Ray LAWRENCE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1021

441 So.2d 1021

Donald Ray LAWRENCE v. STATE.

8 Div. 777.

Court of Criminal Appeals of Alabama.

Aug. 16, 1983.

Rehearing Denied Oct. 4, 1983.

Certiorari Denied Dec. 16, 1983

Alabama Supreme Court 83-90.

Joseph A. Lee and Robert S. Thomas, Scottsboro, for appellant.

Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

This appellant was convicted on a jury trial of rape in the first degree. The court sentenced him to imprisonment in the penitentiary for a term of ninety-nine years.

Appellant is represented by counsel appointed by the trial court, different counsel from those representing him on the trial. They have submitted a brief in which eight issues are presented. None of the issues challenges the sufficiency of the evidence to support the verdict and judgment. Therefore, an extraordinarily brief resume of the facts in general should suffice, which we will undertake to give before our consideration of the issues presented by appellant.

According to the testimony of the alleged victim, she had returned to her home about 1:15 P.M. on January 27, 1982, from a lengthy shopping trip by automobile, had entered her home, had put up some of her groceries, had laid other groceries on a table, had turned on the TV, and was "looking at a magazine," when the following happened:

"It was--the wind wasn't blowing much that day but a little bit and I heard the stormdoor click and I thought it was just the wind closing it--that it hadn't closed when I came in, and I looked out and didn't see a car and then I heard the wooden door open and close and I asked who it was. I thought it might be one of the neighbors that I didn't hear anything and I started to get up and about that time a man came around the foyer with a ski mask on and a gun in his hand.

"Q. Okay; now, what part of the house were you in at that time?

"A. In the living room."

Thereafter, a rather loquacious direct interrogation and answers ensued, in which the witness related that at the intruder's insistence and assurance that he would not hurt her, the intruder, still with his ski mask on and his gun in his hand, pushed or guided her "straight up the stairs in my bedroom door and he took me into my bedroom and I kept pleading with him not to shoot me." Without going into any further details, other than to state that she said he had sexual intercourse with her contrary to her desire, after she had stated to him:

"... I asked him 'What he wanted?' and I said, 'Please don't shoot me. If you will put the gun down I will do what you want.' I said, 'I'm very scared of guns' and he said, 'If you'll promise that you won't run if I put the gun down' and I said 'Yes.' So, he laid the gun down."

The alleged victim could not identify the assailant as the defendant.

Mr. Wesley Hardeman testified as a witness for the State. He was a school teacher who was at home that day on sick leave. He lived diagonally across the street from the alleged victim and her family. He testified that between 1:30 and 2:00 on January 27, 1982, he saw a man, whom he identified as the defendant, in the yard of the alleged victim and her family. He said the man was "proceeding from the corner of the house--from the front of the house across the corner of the ... yard [the omitted name is the possessive of the name of the alleged victim's family], across the ditch to Newport Drive." He further testified that the man had on "some type of covering on his head" and looked as if he "was concealing something under his coat."

The defendant was arrested on August 16, 1982, and was confined, since that date to and through the trial of this case, in the Jackson County Jail. He testified generally as to his whereabouts on the day of the alleged crime and thereafter until the day of his arrest and emphatically denied that he had ever seen the alleged victim prior to his arrest and said he had never been in her house.

I.

We now consider the first issue presented by appellant and will thereafter consider the rest of the eight issues presented in the order of their presentation in the appellant's brief. By the first issue, appellant contends that the "trial court erred in permitting the defendant's testimony to be impeached by the State on an immaterial matter." The contention pertains to some testimony of Mrs. Terry Cogburn, the last witness on the trial of the case, whose testimony was in part as follows:

"Q. Did you see the Defendant, Donald Lawrence, the night of August the 16th?

"A. Yes, sir, I did.

"Q. Was it there in the area of your house?

"A. Yes, sir, it was.

"Q. At approximately what time was this?

"A. It was about 10:15.

"Q. Okay; and where did you see the Defendant at that night?

"A. I saw him walking off my back porch.

"Q. Did you get a good look at the Defendant at that time?

"A. Yes, sir, it was lighted up very well.

"Q. Who else was at home?

"A. My son.

"Q. Are you married?

"A. Yes, sir.

"Q. Where was your husband?

"A. At work.

"Q. How close of a look did you get at the Defendant that night?

"A. Well, it was close. I would say ten or twelve feet."

Prior to such testimony, defendant had interposed an objection on the ground that it was an effort to impeach defendant on an immaterial matter. After the testimony, defendant moved the court to exclude such testimony on the ground that it constituted impeachment of the defendant as a witness on an immaterial matter. He had testified that he was in Scottsboro, where Mrs. Cogburn then lived, on the night of this appellant's arrest, but that until his arrest he was not out of his car but one time and that was to change a tire. He denied knowing Mrs. Cogburn and specifically denied having been at her house or in her yard on the night of his arrest. We agree with appellant's general proposition that a witness should not be allowed to impeach another witness as to an immaterial matter, but we disagree with appellant's contention that the evidence was inadmissible by reason of its constituting an impeachment of the defendant as a witness to an immaterial matter. We can understand that the introduction of the testimony of Mrs. Cogburn had the appearance of testimony for the purpose of impeaching the testimony of defendant. It may well be that the State should have offered the testimony of Mrs. Cogburn during its case in chief and not have waited until after defendant had rested his case in order to do so, and it may well be that it was objectionable on the ground that it was not properly evidence in rebuttal. However, this is not the issue for us to decide. The evidence was relevant, competent and material, irrespective of the fact that it was inconsistent with what the defendant had testified as to his whereabouts and actions on the night of his arrest in the instant case. The evidence shows without dispute that while defendant was in Albertville on a night about a month before the incident referred to by Mrs. Cogburn, there was either on his person, or near him, or in the automobile he was driving that night, a pistol, a pistol holster, and a ski mask. These circumstances, when connected with the testimony of Mrs. Cogburn to the effect that he on another night was in her backyard and on her porch at approximately 10:15 o'clock, were relevant, competent and material evidence as to the identity of defendant as the intruder equipped with a pistol and disguished with a ski mask that committed the crime of rape for which defendant was tried and convicted. This particular evidence does not come within the general exclusionary rule as to the commission of crimes not charged within the indictment under which the defendant is being tried. The evidence meets the test of what is stated by Judge McElroy in the first paragraph of Gamble, McElroy's Alabama Evidence, § 69.01(8) (1977), as follows:

"All evidence tending to prove a person's guilt of the now-charged crime may be said to identify him as the guilty person. However, the identity exception to the general exclusionary rule is much more specific in that it contemplates the situation where the now-charged crime was committed in a novel and peculiar manner and the State is allowed to show that the accused has committed other similar offenses, in the same novel and peculiar manner, in order to show him the perpetrator of the now-charged crime."

Also pertinent and persuasive is the following from Gamble, McElroy's Alabama Evidence, § 70.01(22)(b) (1977):

"One of the primary exceptions for allowing evidence for prior and subsequent crimes is when such other crimes go to show the identity of the perpetrator of the now charged offense. In other portions of this text we have seen that this exception conditionally has been applied only when the person who committed the now-charged crime did so in a novel or peculiar manner. It is reasoned that this should permit the prosecution to show that the accused committed other similar offenses in the same novel or peculiar manner. However, the identity exception seems to have taken on a more liberal definition when the defendant is charged with a sex crime such as rape. In such cases the courts seem to allow proof of other similar crimes by the accused if they, in any way, go to identify him as the person who committed the now-charged crime."

II.

Appellant contends that the trial court erred "in permitting the State in this rape prosecution to introduce evidence of this defendant's commission of other crimes, towit, possession of a pistol and trespassing, in another city with third persons some five or six months subsequent to the time when the rape took place." The contention is directed at testimony of Officer Darrell Childress, of the Albertville Police Department, who testified that while answering "a prowler call at a housing complex" at approximately "12:55 a.m." about a month before defendant's arrest for rape, he observed defendant as he was near "the rear of an...