McMorris v. State, 6 Div. 198

• Decision Date: 07 October 1980
• Docket Number: 6 Div. 198
• Citation: 394 So.2d 392
• Parties: Charlie Frank McMORRIS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 392

394 So.2d 392

Charlie Frank McMORRIS v. STATE.

6 Div. 198.

Court of Criminal Appeals of Alabama.

Oct. 7, 1980.

Rehearing Denied Oct. 28, 1980.

George H. Jones, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen. and J. Anthony McLain, Sp. Asst. Atty. Gen., for appellee.

DeCARLO, Judge.

Rape; twenty years imprisonment.

In June, 1978, the prosecutrix lived alone at 1042 48th Place, North in an apartment complex in the community of Kingston in Birmingham, Jefferson County, Alabama. About 3:00 A.M. on June 15, 1978, the prosecutrix was awakened by a naked black man sitting on her chest and holding his hands over her mouth and her throat. The prosecutrix was told that if she did not make any noise she would not be hurt. According to the prosecutrix, they began to scuffle on the bed, and her attacker hit her on the head and in the eye. The prosecutrix recalled that, when she asked the appellant why he was doing this to her, he replied that, "He didn't have anyone else, and you know, I was as good as any."

As the struggle continued, the attacker attempted to force the prosecutrix to have oral sex with him, but she was successful in avoiding him. At that point, her assailant again hit her with his fist. Subsequently, he forced the prosecutrix to have intercourse with him. After the intercourse, the assailant grabbed the prosecutrix's hair and forced her to walk with him into the living room, then into the kitchen. The assailant retrieved his clothes from a chair and dressed. Subsequently, the prosecutrix asked to go to the bathroom, and, after she entered it, she locked the door. Shortly afterwards, she heard the backdoor slam, and, after waiting "a little while," she left the bathroom. The prosecutrix, dressed in a robe, then went to the apartment of neighbors, Sheila and Dwane Morris. She told them what had occurred, and the Birmingham Police were subsequently called.

According to the prosecutrix, her bedroom was located in the rear of the apartment near an alley lighted by mercury vapor lights. She testified that her bedroom was illuminated by light originating from the streetlight. She recalled that the bedroom window had a shade which was pulled down to within six or eight inches of the window sill. She stated that she had no problem seeing in the bedroom under such conditions and could find anything she wanted without turning on any lights. Further, she testified that her backdoor faced the alley and that, while she and her assailant were in the kitchen, the backdoor was open.

The prosecutrix recalled that, during the struggle, the assailant had picked up a statue in her bedroom, apparently with the intention of hitting her. Also, she stated that they were in the bedroom for approximately thirty-five to forty-five minutes and were in the kitchen between ten to fifteen minutes.

When the police arrived, she described to officers, Gerald R. Attaway and Ward Haralson, her assailant as a black male, approximately twenty-four years old, five feet and eleven inches in height, 170 pounds, with large lips, round eyes, a narrow nose bridge, plaited hair with colored rubber bands on the ends, and a beard.

One week later, at 1:30 A.M., on June 22, 1978, while visiting the Morrises, the prosecutrix noticed a man moving through the cars parked in the apartment complex. She said that the man made his way to two dumpsters located across the street from the Morrises' apartment and that he appeared to be "snooping." The police were called and, when they arrived, Officer Attaway had a conversation with the prosecutrix. The man near the dumpsters was apprehended and taken to the police car. The prosecutrix recognized the man as her assailant. When the second patrol car drove up, its headlights were shining on the appellant and at that time she identified him as her assailant.

The following day, on June 23, 1978, she went to family court, observed a lineup, and again identified the appellant as her assailant. During the trial, she made a positive in-court identification of the appellant as the man who had raped her on June 15, 1978.

During cross-examination, the prosecutrix explained that she had her bedroom shade pulled up about eight inches from the window sill and the window open in order to allow air to flow into her unairconditioned apartment. Also, she stated that the appellant did not enter through the bedroom window. She testified that the windows of her apartment opened outward and the screens were located on the inside of the windows. According to the prosecutrix, the appellant must have entered her apartment through the living room window. She explained that the screen to that window was found in the yard outside the apartment, but she could not recall if the living room window had been locked.

The prosecutrix identified, for the police evidence technician, different items which the appellant had touched while he was in the apartment.

Asked to restate the description of her assailant which she had previously given, she said, "He had on dark pants, dark print shirt."

During further cross-examination, she repeated her testimony concerning the events on June 22, 1978, and stated that Beverly Jackson, a friend, was also present at the Morrises' apartment. According to the prosecutrix, at the time she identified the appellant as her assailant, he did not have colored rubber bands in his hair. Further, she said that, on June 15, 1978, the appellant was wearing a dark, floral print shirt, but she was never asked in two previous trials whether it was short or long sleeved.

In an attempt to impeach the prosecutrix's description of the appellant, the appellant's counsel pointed out that she had not mentioned the narrow nose bridge. During redirect examination the prosecutrix explained that, whenever she had said "narrow nose" she had demonstrated on the bridge portion of her own nose that portion of appellant's nose to which she was referring. Also, she explained that, on June 15, 1978, the appellant's face was approximately three to four inches from her face.

Officer Attaway, after receiving a radio dispatch on June 15, 1978, at approximately 3:50 A.M., arrived at the prosecutrix's residence to investigate the complaint. The prosecutrix's condition at that time was "highly emotional." She had "bruises on her face and was extremely disoriented." The description of the assailant given to Attaway at the time by the prosecutrix was virtually the same as that given by her during the trial.

Attaway recalled that, on June 22, 1978, around 1:00 A.M., he responded to a dispatch and again went to the prosecutrix's residence. Upon his arrival, he conversed with the prosecutrix, then he and his partner went to an area where a dumpster was located. At that time, they apprehended the appellant, then returned to their patrol car. Attaway had a second conversation with the prosecutrix prior to a second patrol car arriving. After this conversation, Attaway placed the appellant under arrest and transported him to the city jail where photographs, which were later admitted into evidence, were made.

During cross-examination, Attaway stated that his partner on June 15, 1978, was Officer M. D. Crawford, and on June 22, 1978, was Officer Ward Haralson. Attaway said the appellant told him that he lived in the neighborhood and was going to see a girlfriend. According to Attaway, the appellant was searched, handcuffed and led to the police car.

On June 15, 1978, Birmingham Police Officer L. E. Stricklin, an evidence technician, went to the prosecutrix's residence. After being shown the items which the appellant touched, he lifted four latent fingerprints. Also, he made additional photographs at the request of the district attorney.

Fingerprint Technician Donna Vogel, of the Birmingham Police Department, made a comparison between the latent fingerprints and found that only one latent fingerprint contained sufficient detail to make an identification. However, that fingerprint was not identified as the appellant's.

At the end of Vogel's testimony the State rested its case. The appellant did not move to exclude and called Frank Buckley, probation officer with the Jefferson County Juvenile Court.

On the morning of June 22, 1978, a lineup was arranged in the chapel of juvenile detention hall in family court. Members of the lineup, chosen from volunteers in the detention hall, closely resembled the appellant. Five black males, each wearing bluejeans and "tee shirts," made up the lineup viewed by the prosecutrix. According to Buckley, only the appellant had a beard, and one other member of the lineup had "plaited hair." Buckley stated that the appellant was five feet and seven inches tall and weighed two hundred pounds.

During cross-examination, Buckley stated that he was with the prosecutrix as she viewed the lineup and that, within five to ten seconds, she had identified the appellant.

Eloise Green, the appellant's mother, testified that in June, 1978, the appellant was seventeen years of age and worked at "Help Unlimited." According to Mrs. Green, she was working in the Ketona Nursing Home as a nursing assistant at the time, and her "off days" that month were June 7th, 8th, 15th, 16th, 23rd, and 24th. She recalled that, on June 14, 1978, she left work around 11:00 P.M. and drove to her mother's home before driving to her home. When she arrived home at approximately 12:00 P.M., the appellant was not there. Later between 12:30 and 1:00 A.M., on June 15, 1978, she saw him in the hallway walking toward the bathroom. After leaving the bathroom, he went to the kitchen and "ate something, then went to bed." According to Mrs. Green, the bedrooms were across the hall from each other, and the doors remained open. Further, she said that, during the early hours of June 15, 1978, she was studying for her State nurses' examination and she did not go to bed until approximately 5:00 A.M. According to the witness, the appellant...