Liddell v. State, 7 Div. 693

• Decision Date: 04 March 1971
• Docket Number: 7 Div. 693
• Citation: 251 So.2d 601,287 Ala. 299
• Parties: James LIDDELL, Jr. v. STATE.
• Court: Alabama Supreme Court

Page 601

251 So.2d 601

287 Ala. 299

James LIDDELL, Jr. v. STATE.

7 Div. 693.

Supreme Court of Alabama.

March 4, 1971.

Reversed after Remandment Aug. 5, 1971.

Oscar W. Adams, Jr., U. W. Clemon, Demetrius C. Newton, Birmingham, Jack Greenberg, Norman C. Amaker, New York City, for appellant.

MacDonald Gallion, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.

HARWOOD, Justice.

This appeal is from a verdict and judgment finding the appellant, James Liddell, Jr., guilty of rape. Punishment was fixed at death.

The evidence introduced by the state tends to show that on the night of 26 August 1964, at about 10:45 P.M., the prosecutrix and her date for the evening were sitting in her date's automobile in a parking area immediately off of a public highway which runs down Lookout Mountain toward Gadsden in Etowah County. After the couple had been thus parked for about a half hour, someone came to the window on her date's side of the automobile, placed a hand on his shoulder, and with a pistol in his other hand, ordered the date out of the automobile. As the date left the automobile he was struck on the jaw and then dragged down the mountain for a distance. Here he was detained at gun point by one or more men in relays until the men left some thirty minutes later.

The prosecutrix was pulled out of the automobile and dragged down the mountain in a different direction by another of the men. While resisting, she tripped her assailant and both fell to the bottom of an embankment. This area was heavily wooded.

There the man who had forced her to this area sexually assaulted her, a second man helping to hold her during this assault. This second man then assaulted the prosecutrix sexually, to be followed by another sexual assault by the first man.

A third man appeared and he also sexually assaulted the prosecutrix. The men then left the area. This third man was subsequently identified by the prosecutrix as being James Liddell, Jr., the appellant here.

After her attackers departed the prosecutrix made her way up the mountain to the home of Mr. and Mrs. Jack Wheeler. She arrived at the Wheeler home in a highly emotional state, begging for help. Her hair was mussed up, and dirt was on her dress, arms, body, and in her hair. After hearing her complaint, the Wheelers called the police, and the parents of the prosecutrix.

That same night she was taken to a hospital in Gadsden. The physician who examined her there found lacerations on the floor and both sides of her vagina. A specimen of fluid having the appearance of semen was removed from the vagina. Subsequent miscroscopic examination of this fluid revealed multiple spermatozoa of different sizes and shapes indicating ejaculation by at least two different men.

Several days later the appellant was identified by the prosecutrix as one of her assailants, he being included in the last of five or six lineups viewed by the prosecutrix. In her testimony at the trial below, the prosecutrix testified she recognized the appellant from seeing him at the time of the attack, there being moonlight and some light from automobiles passing on the highway.

The evidence presented by the appellant sought to establish an alibi, such testimony being directed toward showing that the appellant was elsewhere than at the scene of the attacks at the time they occurred.

This is a companion case to Butler v. State, 285 Ala. 387, 232 So.2d 631, in that Butler was the second man alleged to have raped the prosecutrix on the occasion in question. The facts shown in the Butler case, supra, are in all material aspects virtually the same as those produced in the trial of this appellant. Further, many of the points raised in this appeal are the same as those presented and considered in Butler, supra.

In the present case as in Butler, supra, a motion was made to quash the indictment on the ground that negroes were systematically excluded from the Grand Jury returning the indictment against him. The motion further avers that a motion to quash a previous indictment against the appellant on the same ground, i.e., systematic exclusion of negroes, was granted, and that the Jury Commission of Etowah County was ordered to make up a jury roll; that the Jury Commission 'purportedly' made up a new jury roll and the Grand Jury which returned the present indictment was drawn from such jury roll. The motion avers that at the time the second Grand Jury returned the present indictment, the white population of Etowah County twenty-one years of age or over according to the 1960 Federal Census report constituted 84.6 of the population of Etowash County, and the negro male population in said age group constituted 15.4 percent, and that the jury rolls of Etowash County contain less than 5 percent of the negro males eligible for jury duty.

It is to be noted that the motion does not aver what percent of eligible white population is on the jury roll. It therefore furnishes no basis for concluding that there was any discrimination on a racial basis.

As in Butler, supra, we find no evidence submitted at the hearings on the motion for a new trial tending in anywise to support this ground of the motion for a new trial. The burden cast upon an appellant to establish discriminatory exclusion because of race, and the governing legal principles relating to racial composition of juries as required constitutionally are fully set forth in Butler, supra. Therein we held that the appellant had failed to establish racial discrimination in the composition of the jury roll returning the indictment. We likewise so hold in this case.

Another ground of the motion for a new trial asserts that negroes were systematically Included on the jury roll from which the Grand Jury was drawn that returned the present indictment. Again, no evidence whatsoever was offered in support of this ground. No error therefore resulted in denial of the motion for a new trial on this ground.

A further ground of the motion for a new trial asserted that at the time this indictment was returned women were excluded from the jury rolls of Etowah County from which the Grand and Petit Juries were drawn. This question was decided adversely to appellant's contentions in Butler, supra, with a full recitation and discussion for our conclusion. We adhere to the views expressed in Butler, supra, on this point and hold that point to be without merit.

Another ground of the motion for a new trial asserts that the sentence of death for rape is an unconstitutional sentence in that it amounts to a cruel and unusual punishment. This same point was advanced in Butler, supra, and decided adversely to the appellant's contentions. We adhere to this conclusion and hold this contention to be without merit.

Counsel for appellant also contends that the lower court erred in denying appellant's motion for a continuance timely made in the court below. The ground asserted in the motion as a basis for the continuance was that publicity attending certain demonstrations and occurrences in Selma had so inflamed the minds of many white citizens in Alabama, some of whom might be on the jury trying the appellant, that he could not obtain a fair and impartial trial.

Appellant had the burden of showing the trial court that an impartial trial and an unbiased verdict could not be reasonably expected in Etowah County. Nickerson v. State, 283 Ala. 387, 217 So.2d 536; Bosarge v. State, 273 Ala. 329, 139 So.2d 302.

We do not find in the record any evidence offered in support of the motion for a continuance. In this state of the record nothing is presented on this question for our review. The same type of motion for a continuance was made and denied in Butler, supra, and the denial was made a basis of asserted error, on the appeal in that case. We see no need for further elaboration of the views set forth in Butler, supra, which compelled the conclusion that no error infected the ruling. Likewise no error infected the ruling on the motion for a continuance in this case.

It appears from extended colloquy between counsel for the appellant, the court, and counsel for the state, occurring during one of the hearings on the motion for a new trial that counsel for appellant had requested the issuance of a subpoena duces tecum to the clerk of every circuit court in Alabama, seeking to have the clerks appear in the Circuit Court of Etowah County, and bring with them the court records of their respective counties or circuits in those trials wherein the death penalty had been imposed. These subpoenas are not included in the record before us, but we gather from the colloquy of counsel that the records sought were of trials had since 1927, or 1930, each year being mentioned.

The state filed a motion to quash the issuance of the said subpoena duces tecum and this motion was granted except as to Etowah County. It was the court's view that the records of counties other than Etowah County were irrelevant and immaterial on the question of whether there was a pattern of discrimination in the imposition of the death penalty against negroes as contrasted with whites in Etowah County.

Counsel for appellant now argue that by this ruling the appellant was deprived of a right to discover evidence tending to prove his claim of discrimination in the imposition of the death penalty as between whites and negroes.

We are in full accord with the court's view that the evidence sought by the subpoena duces tecum to every circuit clerk would be immaterial, and irrelevant and therefore inadmissible. The question before the court was the existence of bias only in Etowah County.

The court did not quash the subpoena duces tecum to the Clerk of the Circuit Court of Etowah County. We do not find in the record, however, that any records of the Circuit Court of Etowah County pertaining to the imposition of death penalties by juries in that county were offered in the proceedings below.

Had such records been offered,...