McLoyd v. State

• Decision Date: 22 May 1979
• Docket Number: 4 Div. 699
• Citation: 373 So.2d 1175
• Parties: Raymond Ray McLOYD, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1175

373 So.2d 1175

Raymond Ray McLOYD, alias v. STATE.

4 Div. 699.

Court of Criminal Appeals of Alabama.

May 22, 1979.

Rehearing Denied June 26, 1979.

J. Earl Smith, Dothan, for appellant.

Charles A. Graddick, Atty. Gen., and Jimmy L. DeBardelaben, Asst. Atty. Gen., for the State, appellee.

TYSON, Judge.

The appellant was charged by indictment with having "forcibly ravished S..... E........ M....., a woman," etc. (R. p. 206) Appellant's case was called for trial in the Circuit Court on July 25, 1978. The jury returned a verdict of guilty, fixing punishment at imprisonment for a term of appellant's natural life. Thereafter, the trial judge set sentence in accordance with this verdict. From the denial of his motion to exclude, a request for the affirmative charge and motion for new trial, appellant prosecutes this appeal.

The prosecutrix, Mrs. S.... M..... S....., stated that, on March 4, 1978, her name was S.... E........ M....... Mrs. S..... testified that, on the night of March 3, she had arranged for someone to sit with her two children in her home while she was out of the house. In the early morning hours of March 4, the prosecutrix left her house to take a friend to work at a local tavern. After leaving her friend at work, the prosecutrix drove back to her house, checked on her children, and again left to go to the home of Mr. J.... S....., her fiance at that time. On the way to Mr. S.....' house, at approximately 3:15 a. m., the prosecutrix noticed an automobile following close behind her with its high-beam headlights blinking on and off. The prosecutrix's immediate response was to stop her automobile and retrieve her driver's license from her purse. During her search for her driver's license, the prosecutrix's door was opened from the outside, whereupon she turned and viewed the person who had opened the door.

At this point, defense counsel requested and was granted voir dire examination of the witness concerning her pretrial lineup identification of the appellant. The prosecutrix stated that, on March 7, she identified the appellant as her assailant from a group of five men. Defense counsel objected to further testimony concerning her identification of appellant on the ground that appellant was not represented by counsel at the lineup, which objection was overruled.

Upon resumption of direct examination, the prosecutrix identified in court the appellant as her assailant. The prosecutrix stated that appellant tried to pull her out of her automobile but she kicked and struggled to resist. Appellant grabbed her feet and pulled her out of the front seat, causing her head to hit the street. The blow temporarily stunned the prosecutrix, allowing appellant to place her in the front seat of his automobile. The prosecutrix recalled that the engine in appellant's automobile, in contrast to that of her own, had not been shut off. When appellant had opened the prosecutrix's door, he reached in and seized her keys.

The prosecutrix was thrown into appellant's automobile from the driver's side in such a way that appellant was able to use his right arm to prevent her from seeing where they were going. After appellant had driven for several minutes, the prosecutrix was able to look out of the automobile long enough to recognize a familiar water tower. At one point, the prosecutrix attempted to escape from appellant by exiting through the passenger door while they were moving. Appellant pulled the prosecutrix back into the automobile by the hair on her head. During her escape attempt, the prosecutrix's feet were badly injured from being dragged on the pavement while hanging out of the door.

Approximately one minute before stopping, the appellant turned onto a dirt road. After he stopped the automobile, appellant told the victim to take off her clothes; she refused. Appellant then forced the prosecutrix to have sexual intercourse with him against her will. Afterwards, the appellant returned the prosecutrix to her automobile and gave her keys back to her. As the appellant drove away, the prosecutrix could see his automobile well enough to describe it later for the police.

The prosecutrix immediately reported the incident to Officer Eulan Holland of the Dothan Police Department. From the Police Department, the prosecutrix was taken to the hospital where a pelvic examination was performed on her. Thereafter, the prosecutrix and Sergeant West of the Dothan Police Department attempted to locate the scene where the incident had occurred. The prosecutrix was able to recall several landmarks that she had seen when the appellant was returning her to her automobile. At length, the prosecutrix and Sergeant West found the dirt road where the incident occurred. From there, the prosecutrix went back to Police Headquarters and assembled a composite picture of appellant's face, using transparent plastic overlays.

On March 7, the prosecutrix identified the appellant in a lineup and identified appellant's automobile parked at another location as being the same one used by her assailant. The prosecutrix selected appellant's voice from a tape recording of several voices as being the voice of her assailant.

Dr. James M. Jones, Jr., testified that he examined the prosecutrix on March 4, 1978, in the emergency room at Flowers Hospital. Qualification of Dr. Jones as an expert by testimony concerning his educational background and experience was stipulated by both parties. Dr. Jones' external examination revealed: multiple abrasions on the hands, feet and back; contusions in multiple places on her body; and a hematoma on the left side of her head.

Dr. Jones' internal pelvic examination confirmed the prosecutrix's statement that she had been using tampon sanitary protection at the time of the assault; the tampon was compressed in the posterior vagina. The results of a gynecological smear and culture were negative. Dr. Jones found no internal injuries.

Officer Eulan Holland testified that he was working at Dothan Police Headquarters on March 4, 1978, at approximately 4:20 a. m., when the prosecutrix entered to complain that she had been raped. Officer Holland was allowed to testify as to the details of the prosecutrix's description of her assailant, his automobile, and his dress. After recording this information, Officer Holland called a detective, Sergeant West.

On cross-examination, Officer Holland stated that the prosecutrix, though upset, was coherent during her account of the incident. Officer Holland stated that the prosecutrix's clothing was torn and in disarray.

Sergeant William West of the Dothan Police Department testified that, on March 4, 1978, he was called to investigate the prosecutrix's complaint. Sergeant West described the way in which the prosecutrix put together a composite of her assailant's face. A photostatic copy of the composite was admitted into evidence over defense counsel's objection.

Sergeant West was allowed to relate to the jury the prosecutrix's descriptions of her assailant, his automobile, and his dress over objection by the defense. Photographs of the prosecutrix's injured feet taken by Sergeant West at the police station on the morning of March 4, 1978, were admitted into evidence by the trial judge.

Sergeant West testified that, on March 7, 1978, in response to a radio communication, he went to the home of appellant. There he observed an automobile matching the description given by the prosecutrix of her assailant's automobile. Sergeant West asked appellant to come to Police Headquarters to appear in a lineup. The appellant voluntarily complied. Prior to his appearance in the lineup, appellant was informed by Sergeant West of his Miranda rights and, specifically, that he was entitled to have an attorney present during the lineup. According to Sergeant West, appellant did not request that an attorney be provided him.

On voir dire examination, defense counsel attempted to show that appellant had not voluntarily participated in the lineup and that no attorney was available had appellant requested one. At the close of the inquiry, the trial judge overruled defense counsel's objection to admission of any testimony about the lineup.

Sergeant West's testimony concerning the prosecutrix's lineup identification of appellant as her assailant, her identification of appellant's automobile as the one used by her assailant, and her location of the scene of the incident substantially corroborated the prosecutrix's earlier testimony concerning these events. At the scene of the incident, Sergeant West took several photographs of tire tread tracks in the dirt, which were admitted into evidence. The tread pattern of the tracks at the scene matched the pattern of the tires on appellant's automobile as shown by other photographic evidence. Sergeant West noted that there was only one set of automobile tire tracks at the scene where the prosecutrix said the incident occurred.

Sergeant West stated that he found two toboggans in appellant's automobile when it was taken into custody, which matched the prosecutrix's description of the one her assailant had been wearing during the alleged assault. During the inspection of appellant's automobile, a sample of the seat cover and a sample of the carpeting were removed for testing at the State Crime Laboratory.

Richard Dale Carter, Director of the Department of Toxicology and Criminal Investigation in Enterprise, Alabama, testified that he received several pieces of evidence and took several photographs in connection with his investigation of the instant case. Mr. Carter identified photographs of the tires on appellant's automobile. These photographs were subsequently admitted into evidence by the trial judge.

Mr. Carter decided to have serological analysis performed on the carpet sample and the seat cover sample because of the reddish brown stains which were on them. These tests were conducted by Mr. William Landrum of the Department of Toxicology and...