Marcus v. State, 5 Div. 172

• Decision Date: 17 April 1973
• Docket Number: 5 Div. 172
• Citation: 280 So.2d 786,50 Ala.App. 526
• Parties: Jerry MARCUS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 786

280 So.2d 786

50 Ala.App. 526

Jerry MARCUS v. STATE.

5 Div. 172.

Court of Criminal Appeals of Alabama.

April 17, 1973.

Rehearing Denied May 29, 1973.

Russell, Raymon & Russell, and Allan Nathanson, Tuskegee, for appellant.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was tried for the crime of assault with intent to ravish. The jury found him guilty of assault and battery and assessed a $500.00 fine as punishment. The trial court added six months in the county jail as additional punishment.

The victim was a coed student at Tuskegee Institute residing on the campus. Around 7:00 P.M. on the night of March 14, 1972, the victim was walking toward the dormitory where she lived when appellant drove up in his car and asked her if she wanted a ride and she told him no. Appellant then pulled a pistol and pointed it at her and told her to get in the car. In obedience to this command, she walked in front of the car to the passenger side and got in the car. According to her testimony appellant pointed the gun at her head and told her to lie down. He gave her two shots in her arm with a needle, which made her awfully dizzy. He tied her hands behind her back with a necktie, blindfolded her with a handkerchief and gagged her. According to her the gag was loose and she freed her hands from the necktie without any difficulty. Appellant drove from Tuskegee Institute to a public lake near the City of Tuskegee, which is adjacent to the Macon County Hospital. They had a conversation in the car and appellant asked her if she could get out of the car. She got out without any help but felt weak and dizzy from the shots and she put her hands on the car to keep from falling. Appellant got out of the car and went to where she was standing and started fondling her. In her own words: 'First he was holding me around my waist and then my back and then my behind and my breast.' She testified further that he put his hands on her personal parts. She told him he could not rape her as she was having her period.

She further testified that appellant never did say anything to her about sexual relations, he did not remove any of her clothing and did not ask her to remove any of her clothing. At no time during the automobile ride was sex mentioned, and at no time during the entire night did appellant even attempt to have sexual relations with her. She did not scream for help or make any kind of outcry, stating she did not think anyone could hear her. At the lake, she heard some noises and appellant told her the noises were from the intercom system at the hospital.

Appellant carried the victim back to her dormitory going through the City of Tuskegee to the Institute. When the victim got out of the car, she tried to get the car tag number but only got the last three digits, viz., 816, and the first two digits were either 'H--G or 4--6 or something.' Upon entering the dormitory with help she made an immediate complaint to her dorm counselor, Mary Catherine Brown, and she was carried to the emergency room at John Andrews Memorial Hospital at Tuskegee Institute. The hospital records were identified by the custodian and, over objection of appellant, introduced in evidence. According to these records, 'the admitting diagnosis is (was) drug intoxication.' Following emergency treatment, she was admitted to the hospital where she remained three days.

During her hospital confinement she was seen and observed by Dr. Thomas D. Calhoun. He was asked to refer to the medical records of the victim and state the history leading up to her admission and he read from the admitting nurse's note, 'The history that was given states that two men took her in a car at gun point and gave her two injections.' He was asked to state the victim's emotional condition at the time he saw her, and he said, 'She was upset, she was sedated prior when she came into the hospital because she was upset, and, well, she was just upset.' He further testified on cross-examination that he did not do a physical examination of her body and he 'didn't see any cuts or abrasions or contusions, anything like that.'

The investigating officers interviewed the victim at the hospital and got from her the numbers she could remember that were on the automobile tag and traced the number to a residence occupied by appellant. They put out an 'APB' (an all point bulletin) on the car. Several police units joined in the search and appellant was found in the car on Church Street. He was stopped and taken into custody. The officers did not conduct a search of the automobile but with the aid of a flashlight flashing through the glass of the car, they observed the interior and in 'plain view' saw a necktie, a tassel, and a small black bag sticking out from under the edge of the driver's side of the vehicle. In the bag was a .22 caliber pistol and some bottles containing liquid, a pair of eye glasses, a picture, a yellow cap described as the kind the officer had observed in the emergency room at the hospital which was used to cover the point of a hypo needle. They also observed the name 'Jerry' on the dash of the car. These articles were properly identified and admitted in evidence over appellant's objections.

The police officers testified that they received a complaint from the victim around 10:00 P.M. and they arrested appellant sometime after 12:00 midnight and carried him to the jail in Tuskegee. They said they gave appellant 'his rights' and started questioning him around 12:50 A.M.

From the record:

'Q. And what were those rights that you advised him of?

'A. I advised him that he had a right to remain silent, that he didn't have to make any statement, that any statement that he made could be held against him in a court of law, that he had the right to have an attorney present when making the statement.'

Appellant wrote out a statement in his own handwriting and signed it in the presence of a police sergeant of the City of Tuskegee and a security officer at Tuskegee Institute. The statement was completed and signed at 5:10 A.M. The officers admitted that it took a long time for appellant to write out the statement. They said that during the time he was preparing the statement, appellant told the officers that he wanted to stop and rest and get something to eat, and they told him to finish writing the statement first. The statement is as follows:

'S. Ex. 3

11/7/72 (4 pps)

DMM

Date 14 March 72

'STATEMENT OF: JERRY MARCUS

'The first time I saw Miss Jenifer, I was coming up the old Mont. road. I had reached the second red light before you reach Federal Credit union. I saw her through my rear view mirror. The light held long enough for me to get a good look at her. When the light changed, I turned at Lincoln Gates and turned left on the street of the Emory's on campus. I circled around the engineering building & I saw her walking. I asked her was she going toward Resident D. She said yes. So I by passed D. She said that she was going to Resident D. I told her to get down on the floor with my revolver. I went to town around the V.A. road. I turned left going toward Rockerfellow. When I got to the Old Folds home I turned right. We took Cedar street to the end of the road, then started back toward town. She didn't anything. I also took her around the lake. She asked was I going to rape or kill her. I told her no. She said that her period was on. I said don't worry about it. So I asked her to sip up (sic) & turn her back toward me. I used the same tie to tie her up. Then I put my handkerchief over her eyes, nose & mouth. Then I asked her to lay down. I injected two shots in her. It was penathol. (sic) She said that she never been that high before. Then she said why don't you untie me, I can run anywhere, I can't do nothing. So I said just relax. Then I said do you feel like you can stand up. She replied I don't know. Then I opened the door for her. She got out, & so did I. She leaned against me. We heard a voice on an intercome (sic). She replied what's that. I said that was at the Hospital. Then I asked her were she cold. She said not yet. I look up toward the sky. I asked her did she see the stars, she said yes. Then I helped her back into the car. I asked her what was her boy friends name. She told me his name, I also forgot it. She replied, did he tell you to do this. I said no. Then she replied your're nice. She mentioned what time was it. It was after eight. She said that she had to study. So we came back to campus the same way. Only throug (sic) town on Highway 80. When we reached Resident D. I told her that I would turn around first before I let her out. (sic) So I turned around and asked her for he (sic) phone number again. She said 4915 I think. So she admitted that she was glad it happened. Then I come back from off campus & stopped at the phone booth next to Coley's Grocery. I called Miss Gwendolyn Synecal. I told her I had been to Shorter. That was my excuse for not calling her earlier. So she asked me was I coming over, so I said wait until tomorrow. She asked again. So I said I'll be over shortly. I arrived there at about 9: p.m. (sic) We laughed & talked & watched T.V. until 12:00 then I left there on my way home. Just as I turned off on South Church Street. I was stopped; by an Police Officer (sic). Mr. Mitchell stopped me. Then the rest of the crew came. Miss Jenifer Barrington; I knew the first time that everything worked so well with Miss Shotgun (the girl I mett on the rainey nigh) that in my mind, I got heavy headaches (sic). I was always told my love ones, friends, ect. (sic) that you should follow your mind but in my mind I knew that this was wrong. I treated Miss Jenifer very nice after we parked. I also told her that I wouldn't rape or kill her. She asked me to untie her so she could talk to me. So I waited about five minutes more,* finally released her. After sitting down by the lake for a while, I...