McLemore v. State

• Decision Date: 29 September 1989
• Docket Number: 3 Div. 16
• Citation: 562 So.2d 639
• Parties: James L. McLEMORE, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 639

562 So.2d 639

James L. McLEMORE, Jr. v. STATE.

3 Div. 16.

Court of Criminal Appeals of Alabama.

Sept. 29, 1989.

Rehearing Denied Nov. 17, 1989.

Certiorari Quashed April 20, 1990

Alabama Supreme Court 89-302

and 89-317.

Thomas M. Goggans, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and Robert E. Lusk, Jr., Asst. Atty. Gen., for appellee.

BOWEN, Judge.

James L. McLemore, Jr., was charged in separate indictments with the offenses of burglary in the first degree, rape in the first degree, and sodomy in the first degree. The three cases involved the same victim and were consolidated for trial on McLemore's motion. After a jury found him guilty of all charges, McLemore was sentenced as a habitual offender to life imprisonment in each case. McLemore raises ten issues on this appeal from his convictions.

Around 1:30 a.m. on the morning of August 23, 1987, the victim, who was asleep on the sofa in her living room, was awakened by the sound of the wind chimes hanging in one of her interior doorways. She sat up and turned on a light. A black male wearing a shirt and shorts of multi-colored plaid, a white cap, and black shoes stepped out of the doorway. This man, whom she did not know, but identified in court as McLemore, had a knife in his hand and demanded money from her. She told him that she did not have any. He then ordered her to disrobe and forced her to have sexual intercourse with him. Afterwards, he forced her into her bedroom, where he again raped her and then forced her to perform oral sex. During the second rape, the victim began to bleed.

McLemore was arrested that evening (see Part IV below). Subsequently, a latent print lifted from the frame of a window screen at the victim's apartment was identified as McLemore's right thumbprint. A search warrant was obtained for the apartment where McLemore resided with his parents, two sisters, and a brother. A matching plaid shirt and shorts set was found in the bedroom occupied by McLemore, his sisters, and his brother. A pair of men's underwear with blood stains in the crotch area and a white cap were discovered in the laundry hamper. The victim identified the shirt, shorts, and cap as those worn by the intruder. The blood stains on the underwear were determined to be of vaginal origin and were consistent with the blood of the victim but "could not have come from McLemore."

McLemore's parents testified in his defense. Mrs. McLemore stated that the shirt and shorts set belonged to her other son, Lamar, and that everyone living in the apartment used the same laundry hamper. On cross-examination, however, she acknowledged that McLemore and his brother were comparable in size and that McLemore was wearing the shirt and shorts set on the day of the crime. Mrs. McLemore also stated that McLemore, his brother, and his father all wore the same size underwear. While she could not state to whom the blood stained underwear belonged, she maintained that they "look[ed] too big" for McLemore. On cross-examination, McLemore's father denied placing the blood-stained underwear in the laundry hamper. McLemore did not testify.

I

The trial court properly denied McLemore's motion for a new trial without a hearing. Aside from the usual assertions contained in motions for new trial, McLemore's motion alleged: "After trial, the undersigned counsel received information that the victim had a sister and that there is a suspicion that the sister appeared to the jury as the averred victim."

The motion was unverified and was not accompanied by any affidavits in support of this bare allegation. Therefore, McLemore was not due an evidentiary hearing. See Donahoo v. State, 505 So.2d 1067, 1075 (Ala.Cr.App.1986); Geter v. State, 468 So.2d 197, 198 (Ala.Cr.App.1985).

It is interesting that, in support of his contention that he should have been granted an evidentiary hearing, McLemore has compared his motion to a petition for error coram nobis (now A.R.Crim.P. (Temp.) Rule 20 petition). This court has made it very clear that a petition for writ of error coram nobis should be based on affidavits attached thereto as the petition is "essentially a motion for new trial." Carroll v. State, 462 So.2d 789, 790 (Ala.Cr.App.1984). Moreover, "[a] hearing [on a coram nobis petition] should not be granted without affidavits sufficiently refuting a record that appears correct." Stephens v. State, 420 So.2d 826, 828 (Ala.Cr.App.1982). See also Clency v. State, 442 So.2d 148, 149 (Ala.Cr.App.1983).

McLemore's reliance on Ex parte Foster, 548 So.2d 478 (Ala.1988), is also misplaced, as that case is factually distinguishable from the present case. In Foster, the defendant filed a pro se motion for new trial alleging the incompetency of trial counsel. We note that Foster's motion, unlike McLemore's motion, set forth specific facts in support of Foster's allegations. The trial judge denied Foster's motion by a written order in which he erroneously concluded that certain facts asserted in that motion "would not have been admissible in the case." 548 So.2d at 480. It was for this reason that the Alabama Supreme Court remanded the case for an evidentiary hearing. This is clearly a different situation from the case at bar.

II

McLemore asserts that a non-responsive answer by a witness for the State resulted in the erroneous admission of evidence of other crimes.

While eliciting the events surrounding McLemore's arrest for the instant offenses, the prosecutor asked the investigating officer: "Did you arrive out there [where McLemore was being detained by patrol officers]?" The officer replied: "Yes, we did. We arrived on the scene and found that the patrol had a black male, the defendant, James McLemore, Junior.... I went up to the subject and asked him for some identification and if he had any prior arrests or record or anything. And at that time he said--." At this point, defense counsel objected and, outside of the jury's presence, requested the trial judge to instruct the jury to disregard the officer's question to McLemore. The trial judge sustained the objection, but refused to give the requested instructions to the jury, stating:

"I am not going to do that because then I am planting something in the jury's mind that is not there. The question was--I mean the answer was that we went over to talk with him and asked him about a prior record. He didn't say he had a prior record...." (Emphasis added.)

In general, evidence of other or collateral crimes committed by a defendant is not admissible at his trial for a specific offense. C. Gamble, McElroy's Alabama Evidence, § 69.01(1) (3d ed. 1977). Evidence which reveals that the defendant has been previously arrested for other offenses is considered to be inadmissible evidence of collateral crimes. See Ex parte Johnson, 507 So.2d 1351 (Ala.1986); Fuller v. State, 472 So.2d 452 (Ala.Cr.App.1985); Prince v. State, 420 So.2d 856 (Ala.Cr.App.1982). The investigator's nonresponsive answer in this case, however, did not, as the trial court noted, reveal that McLemore had been arrested for other offenses. Consequently, there was no violation of the general exclusionary rule noted above, and we find no error in the trial court's refusal to give the requested instructions. In such a case as this, the trial judge's exercise of discretion should be given every presumption of correctness.

III

McLemore contends that the evidence developed from his blood sample was inadmissible because the state failed to prove that his consent to the taking of the sample was voluntary. In concluding that the consent was voluntary, we fully recognize that a finding that McLemore's initial apprehension was improper may affect our holding. See Part IV.

After McLemore's arrest on the evening of August 23, he was transported to police headquarters. Former Detective L.V. Moore testified at the pre-trial suppression hearing that, after taking photographs of McLemore and presenting a photographic lineup to the victim,

"we read the defendant his constitutional rights and began talking to him about--he stated that he understood his rights and he did sign the rights form. We began talking to him about the rape. We asked him where he was at, questions, and he said he didn't know anything about it. We asked him would he be willing to give us a blood sample. He said yes he would, to clear his name. I then--we had him sign a blood sample waiver form."

When asked by the prosecutor, "Did y'all use any coercion or force?," Moore responded, "Not at all. He stated he wanted to clear his name. We asked him would he give us blood, and he said he would, that he wanted to clear his name."

McLemore's testimony at the suppression hearing conflicted with Moore's. McLemore stated that Moore told him "You're going to give us some blood." When he responded negatively, Moore slapped him on the side of the head and tried to kick him in the groin while he was handcuffed to a chair. Moore's partner put a paper bag over his head and McLemore was hit several times on the head with a book. McLemore stated that he signed the consent form "[t]o stop them from hitting me across the head."

" 'When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntary given.' Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968); Schneckloth v. Bustamonte, 412 U.S. 218, [222,] 93 S.Ct. 2041, [2045,] 36 L.Ed.2d 854 (1973)." Murray v. State, 396 So.2d 125, 129 (Ala.Cr.App.1980), cert. denied, 396 So.2d 132 (Ala.1981). In order to establish the voluntariness of a consent, the prosecutor must prove two distinct elements: (1) that the consent "was evidenced by a statement or some overt act sufficient to indicate an intent to waive the constitutional right," and (2) that "there was no duress or coercion, express or implied." Reid v. State, 388 So.2d 202, 207 (Ala.Cr.App.1979), reversed on...