Lawson v. State

Decision Date02 October 1979
Docket Number6 Div. 30
Citation377 So.2d 1115
PartiesHenry J. LAWSON, Jr., alias v. STATE.
CourtAlabama Court of Criminal Appeals

Al L. Vreeland, Tuscaloosa, for appellant.

Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.

BOOKOUT, Judge.

Rape; sentence: forty-five years imprisonment.

During the afternoon of April 6, 1978, the prosecutrix was raped by the appellant in her apartment in Tuscaloosa. The appellant's defense was that of consent. The evidence at trial was conflicting thereby presenting a question for the jury. We need not go into the details of the act for we are convinced the evidence was sufficient to establish a prima facie case.

I

Appellant contends that the trial court in disallowing him to question the prosecutrix as to her use of "birth control methods" infringed upon his constitutional right to confront and cross-examine the witness. He asserts that the question was material to the issue of consent. Under § 12-21-203, Code of Ala. 1975, certain procedures are outlined by which evidence reflecting upon the prosecutrix' prior sexual behavior is heard In camera and ruled upon as to its admissibility before it is presented to the jury. Many states have adopted similar "rape shield statutes" in order to encourage prosecution of rape cases without entering into a degrading exposition of the prosecutrix' past sexual behavior irrelevant to the case being tried. The In camera hearing allows the trial judge to listen to the proffered testimony outside the presence of the jury and exclude evidence of prior sexual behavior generally while admitting only evidence of her past sexual behavior Directly involving the accused.

In the instant case the trial judge, pursuant to § 12-21-203, thrice offered the appellant the opportunity to present his evidence In camera on this question. The appellant initially accepted, however, later refused when the trial judge clarified his position by stating that since this was an adversary proceeding the district attorney would also be present. Had the appellant made his In camera offer of proof with the trial judge ruling as to its admissibility, we would be in a position to determine whether or not infringement upon his constitutional right to confront and cross-examine the witness occurred. Since the appellant voluntarily refused to do so, we find no justification in speculating as to what evidence the appellant was attempting to introduce or its relevancy to the issue of consent.

The appellant's question propounded to the prosecutrix was, "Were you using any kind of birth control methods?" He was given an opportunity to make an In camera showing of its relevance and in refusing to do so, he left us nothing to review. See: Jackson v. State, Ala.Cr.App., --- So.2d ---- (Ms. August 21, 1979), and cases cited therein; Turley v. State, Ala.Cr.App., 356 So.2d 1238 (1978); Wilson v. State, Tex.Crim., 548 S.W.2d 51 (1977).

II

Appellant contends that certain questions and statements made by the district attorney, taken either individually or collectively, prejudiced the jury to such an extent that he could not receive a fair and impartial trial. Consequently, he asserts that his motions for a mistrial, made after each comment, should have been granted.

A

The district attorney's first remark concerned the physical condition of a prospective witness subpoenaed by both the appellant and the State. The district attorney stated that she was a mental patient, had been in and out of Bryce Hospital, and was taking medication which was not balanced and was making her sick. The trial judge immediately excused the jury, summoned the prospective witness, and questioned her as to her past and present physical condition. The prospective witness' answers confirmed the truth of the district attorney's prior statements. Thereafter, the trial judge, in agreeing with the appellant that any such comments would have been better handled outside the presence of the jury, stated that he doubted anything was said that would not have been asked on either direct or cross-examination. He then polled the jury to ascertain whether or not the comments had any prejudicial effect, to which no affirmative answer was given. We note that neither the appellant nor the State called the prospective witness to testify.

Where the trial court acts promptly to impress upon the jury that improper statements should not be considered by them in their deliberations, the prejudicial effect of such remarks is removed. Gavin v. State, 52 Ala.App. 469, 294 So.2d 169, cert. denied, 292 Ala. 722, 294 So.2d 170 (1974) and cases cited therein. The trial judge, in realizing the potentially damaging consequences of the district attorney's comments, acted swiftly and professionally in instructing the jury and polling them as to the prejudicial effect of such comments. We find that the trial judge's actions were not an abuse of discretion and that any error that might have arisen by the prosecutor's comments was thereby cured. Watts v. State, 53 Ala.App. 518, 301 So.2d 280 (1974), and cases cited therein.

B

Secondly, appellant contends error occurred when the district attorney addressed a question to the prosecutrix concerning whether or not she had participated in psychiatric counseling subsequent to the incident in issue.

After the district attorney had propounded the question, the trial judge sustained the appellant's general objection and instructed the jury to disregard it. The district attorney did not pursue the matter further. Shortly thereafter, and after the jury had been excused for the evening, the appellant moved for a mistrial. The following morning the trial judge, after carefully instructing the jury as to sustained questions and remarks of counsel and after polling the jury as to the prejudicial effect of such, denied the appellant's motion.

We find no prejudicial error mandating reversal in the trial judge's actions. In agreeing with the appellant, the court ruled favorably on his objection and Sua sponte instructed the jury to disregard the question. The following morning, and before continuing the reception of testimony, the court polled the jury as to the possibility of prejudice and found none to exist. Consequently, the court's admonishments eradicated the potential for prejudice. Woods v. State, Ala.Cr.App., 344 So.2d 1225, cert. quashed, Ala., 344 So.2d 1230 (1977), and cases cited therein; Gavin, supra; Watts, supra.

C

Appellant's third assertion of error involves the questioning of a State witness by the district attorney concerning the complaint made by the prosecutrix.

Peggy Raymon, a close friend of the prosecutrix, testified that immediately after being informed of the incident she and her son went directly to the prosecutrix' apartment and observed her condition. Mrs. Raymon was then asked the following question:

"Q. What complaint did she make?

"A. She said she'd been raped."

Appellant's counsel immediately objected to the statement and made motions for exclusion and mistrial. The trial judge sustained the objection and granted the motion to disregard and also instructed the jury. In addition he polled the jury as to the prejudicial effect of the statement and then denied the motion for a mistrial.

It is a well established rule in Alabama that testimony concerning the prosecutrix' complaint must be confined to the fact of the complaint. Details of the occurrence such as specifying the identity of the person accused, the injuries claimed to have been sustained, or other minute circumstances of the offense are not admissible. Hall v. State, 248 Ala. 33, 26 So.2d 566 (1946); Ciervo v. State, Ala.Cr.App., 342 So.2d 394, cert. denied, Ala., 342 So.2d 403 (1976); Langford v. State, 54 Ala.App. 659, 312 So.2d 65 (1975). See: Banks v. State, Ala.Cr.App., 358 So.2d 477, cert. denied, Ala., 358 So.2d 480 (1978); Burkes v. State, Ala.Cr.App., 350 So.2d 1067, cert. quashed, Ala., 350 So.2d 1069 (1977).

In Fisher v. State, 57 Ala.App. 310, 314, 328 So.2d 311, cert. denied, 295 Ala. 401, 328 So.2d 321 (1976), a similar issue arose. In that case, the answer given to the district attorney's question was that the prosecutrix "had been raped by a colored fellow." We held that, although the trial judge sustained the defendant's objection, the statement concerning the identity of the rapist was too broad to identify any particular person as the assailant. Likewise here, in view of the actions of the trial court in sustaining the objection and in instructing and polling the jury, we find no error prejudicial to the appellant's rights resulted from the answer given. This is especially so in light of the fact that appellant admitted the intercourse but claimed it was by consent. Etheridge v. State, 47 Ala.App. 233, 252 So.2d 655 (1971).

D

Lastly, the appellant asserts that the district attorney improperly stated in his rebuttal " 'not to worry about the sentence that the Judge could grant the probation if he wanted to.' " Appellant, after the conclusion of all arguments and outside the presence of the jury, moved for a mistrial. No objection, motion to exclude, or motion for new trial was made. The district attorney denied the appellant's statement of his argument. In denying the appellant's motion, the trial judge stated that the appellant's counsel had mentioned in his closing argument the possibility of the appellant's going to prison which gave the State the right to reply. The trial judge additionally commented to counsel that probation could be granted on a sentence of ten years. (Section 15-22-50, Code of Ala. 1975, grants the circuit and district courts this discretionary authority.)

The general rule is that improper argument of counsel is not a ground for a new trial or subject to review on appeal unless there is due objection by counsel or a motion to exclude, an adverse ruling thereon by the court, or a refusal of the...

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