McLoyd v. State

• Decision Date: 29 July 1980
• Docket Number: 4 Div. 782
• Citation: 390 So.2d 1115
• Parties: Benjamin McLOYD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1115

390 So.2d 1115

Benjamin McLOYD v. STATE.

4 Div. 782.

Court of Criminal Appeals of Alabama.

July 29, 1980.

Rehearing Denied Oct. 7, 1980.

E. H. Graves, Jr., Eufaula, for appellant.

Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant guilty of rape. The court fixed his punishment at imprisonment for life and sentenced him accordingly.

Appellant says that the trial court should have granted defendant's motion for a new trial on grounds alleging in effect that the verdict was contrary to the great weight of the evidence.

The undisputed evidence shows that the alleged victim, a married woman, was raped at her home. This undisputed fact is not questioned by appellant. His attack upon the sufficiency of the evidence is aimed exclusively at the question of the identity of the rapist. Defendant testified that he was not the guilty person. The victim, the only other eyewitness to the crime, was unable to identify defendant as the criminal. The only person at the home of the victim at the time was her seven-month-old child. According to the victim, the man who raped her ran from her home, and about that time she ran screaming from the house pleading for help.

Richard James testified that on the occasion of the crime he was sitting in a truck across the street from the victim's residence. He shouted at the man he saw running from the victim's residence, whom he identified as the defendant, but lost sight of him as he went behind a neighboring house. He and a neighbor, Don Ward, who was a witness also identified the man as the defendant, then pursued him in Mr. Ward's automobile to some pecan trees, where the man left the road running; Mr. James called law enforcement authorities, and Mr. Ward remained until authorities arrived. There was other corroborative evidence, including testimony that bloodhounds were brought to the area where defendant had been seen running, that they took up the scent for a while, but that defendant obtained a taxi, and he was taken to an address that he said was the home of his uncle and aunt, but which was an apartment of Jerome Grimsley, at which defendant was living at the time.

With the exception of the testimony of the defendant, the evidence, including circumstantial evidence and some expert testimony, was extraordinarily strong against him. We see no necessity for stating further details in support of our conclusion that the verdict was amply supported by the evidence and that it was not palpably wrong or unjust.

We do not agree with appellant's contention that the trial court was in error in overruling defendant's motion to suppress evidence of the contents of the apartment where defendant was living with the permission of the tenant thereof on the day of the crime. The tenant, as stated above, was Jerome Grimsley, a cousin of defendant. No search warrant was obtained, but Jerome Grimsley freely and voluntarily gave his consent. Thereby there is an exception to the necessity for the procurement of a search warrant, and the fruits of the search were admissible against defendant to the same extent that they would have been admissible against Grimsley. Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Cobb v. State, Ala.Cr.App., 355 So.2d 741, (1978); United States v. Woods, 560 F.2d 660 (5 Cir. 1977).

Another issue presented by appellant is stated by him as follows:

"Did the trial court err in denying bail to the Defendant before trial?

Defendant filed a motion for bail on August 16, 1979. On August 24, the motion was denied. He argues that the case is not a capital case and for that reason he was entitled to bail. In Ex parte Bynum, 294 Ala. 78, 312 So.2d 52, 55 (1975), it was held:

"... The only effect of Furman, ¹ was to eliminate the imposition of the death penalty as it was then enforced, and not to eliminate the classification whereby crimes are categorized as capital for purposes other than punishment."

Perhaps strictly speaking it can be said that since the effective date of Code of Alabama 1975 the crime of rape is not "categorized" as a capital offense, in view of the deletion from the Code of the punishment of "death" from that previously prescribed and its omission from the crimes now punishable by death proscribed by the Death Penalty and Life Imprisonment Without Parole Act as codified in §§ 13-11-1 through 13-11-9. Nevertheless, we hardly see a reasonable basis for not applying the rationale of Bynum, supra, merely because the legislative department of the State has acted, as the judicial department has done, to meet the demands of Furman. Whether the rationale of Bynum still applies or not, there is other law (Code of Ala.1975, § 15-13-3(a)) that stands as an answer to appellant's contention.

"A defendant cannot be admitted to bail when he is charged with an offense which may be punished by death if the court is of the opinion, on the evidence adduced, that he is guilty of the offense in the degree punished capitally, nor when he is charged with a personal injury to another which is likely to produce death and which was committed under circumstances such as would, if death arises from such injury, constitute an offense which may be punished by death. (emphasis supplied)"

Section 15-13-3(a) was obtained intact from Code 1940, recompiled 1958, Tit. 15, § 195, effective at the time of the rendition of Bynum, supra.

By Code of Alabama § 13-11-2(a)(3), rape when the victim is intentionally killed by the defendant constitutes a death penalty and life imprisonment without parole crime.

There was evidence, strong evidence, of the brutal nature of the crime, including the use by the rapist of a large knife, with which he cut the victim on her hand. He choked her with both hands and threw her to the floor. The evidence is not sufficient to convince us that the victim sustained "a personal injury ... likely to produce death," but it cannot be said with certainty as of the time bail was denied, that the trial court was not convinced that her injury was not "likely" to produce death," nor that defendant did not intend to kill the victim. It appears that on the hearing of the motion for bail, the parties submitted to the trial court the transcript of the evidence on the preliminary hearing, which chiefly pertained to the question whether there was probable cause for believing that defendant committed the crime of rape and not whether he was entitled to bail.

It is to be said also that if the trial court was in error in denying defendant's motion for bail, then was the time for defendant to have attempted to review the action of the trial court. He evidently elected not to do so. We cannot assume, as he now claims, that if he had been allowed bail he would have provided bail and would then have been in a better position to defend himself by counsel than he was while confined in jail until the time of trial. There was no substantial injury to defendant, insofar as the verdict of the jury is concerned, that resulted from his failure to be granted the right to make bail.

Appellant states that the trial court was in error in not granting defendant a continuance of the case, which he requested by a written motion. The court conducted a hearing on the motion, at which no evidence was offered, but counsel for the parties presented at length their respective views. The gist of appellant's view at the present time is stated in his brief as follows:

"The Defendant did not have the same attorneys for the preliminary hearing that he did for trial. Defendant's trial counsel did not have adequate time, with the Defendant confined in jail with no bail, to adequately prepare the case for trial. The trial Court was advised that the defense would be alibi and that counsel needed his client to go over the ground where he had been on the date of the alleged crime and that he could not adequately get the facts without the assistance of Defendant.... The trial Judge obviously abused his discretion when he denied defendant even one short continuance to adequately prepare his defense-particularly in view of the extra security placed around Defendant."

We are favorably impressed with the argument made by defendant's counsel on the motion for a continuance as to the desirability and advisability perhaps of having more time to prepare the defense, as applied to the facts that the indictment was returned on August 3, defendant was arraigned on August 13, and the case was set for trial on August 27, 1979. However, we are not favorably impressed with the contention that the "trial Judge obviously abused his discretion" in the context stated above. The colloquy among the court and respective counsel for the parties on the motion for a continuance constitutes over nineteen pages of the transcript. The most specific statement by defendant's counsel as to a need for further time to establish defendant's claim of an alibi was with reference to the unknown whereabouts of Wallace Jerome Grimsley, a cousin of defendant mentioned hereinabove on another subject, with whom defendant was living at the time. Defendant's attorney said:

"... Wallace Jerome Grimsley has consented (sic) himself or concealed himself or left the State. We don't know. We are trying to locate him through his family and tried to ascertain his whereabouts and have a talk with him. There is another point. As I said, the race question was purely for the sake of letting the emotions subside."

Thereupon, the court made a statement which is as follows:

"... I wasn't aware that race is an issue and if it is, I think the Defendant has made it an issue."

Counsel for the State then said:

"Judge, I might say in response to Mr. Grave's supposed showing that what Grimsley told the Defendant's Mama, I would like to state that he made a statement to the police that he had no idea where ...