Mims v. State

• Decision Date: 31 May 1991
• Citation: 591 So.2d 120
• Parties: Raymond June Saxon MIMS v. STATE. CR 89-755.
• Court: Alabama Court of Criminal Appeals

Page 120

591 So.2d 120

Raymond June Saxon MIMS v. STATE.

CR 89-755.

Court of Criminal Appeals of Alabama.

May 31, 1991.

Rehearing Denied June 28, 1991.

Certiorari Denied Dec. 6, 1991

Alabama Supreme Court 1901526.

Lawrence B. Sheffield and R. Wendell Sheffield, Birmingham, for appellant.

James H. Evans, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for appellee.

JAMES H. FAULKNER, Retired Justice.

Raymond June Saxon Mims was indicted for the offenses of kidnapping in the first degree, in violation of § 13A-6-43, Code of Alabama 1975; rape in the first degree, in violation of § 13A-6-61, Code of Alabama 1975; and sodomy in the first degree, in violation of § 13A-6-63, Code of Alabama 1975. The trial court granted the State's motion to consolidate Mims's cases with those of two of his codefendants, Walter Maul and Larry Williams, who were each indicted for the offenses of rape in the first degree and sodomy in the first degree. The jury found Mims guilty of the three offenses, as charged in the indictment, and he was sentenced to three consecutive terms of life imprisonment. Seven issues are raised on appeal.

I

The victim testified at trial that, on March 14, 1989, she had gone "job hunting" and was walking to the house of her brother's girlfriend, Valene, also known as Short. The victim testified that she "ran into" Willie Ford, also known as Batman, who asked her if she wanted a ride. Batman drove her to Short's house, and she stayed a while before walking to a store to get some milk for Short's baby. Batman later walked up to Short's house and the victim left with him. According to the victim, she and Batman stopped along the way at some picnic tables at a community center and talked. They then headed back to Short's house because she had forgotten her purse. She heard some people at the community center whistling at Batman, and she followed Batman over to talk to them. She noticed a red two-door Jaguar automobile parked in front of the center and several individuals--including Mims and Terry Harris, also known as Blue--standing around the car. She testified that Mims threw her the car keys but that she did not know how to drive.

The victim got into the car with Mims, Blue, and Batman. She testified that she asked where they were going but that she got no answer, and that she told them that she wanted to go home. According to her, Mims drove the car to Homewood and began "tailing" a green car with tinted windows. She further testified that Mims drove the car to an apartment complex in Homewood; that Mims, Blue, Batman, and she walked upstairs to an apartment; that the men knocked on the apartment door; and that Walter Maul, also known as Smokey, opened the door. She noticed that the apartment was completely empty with the exception of a large "boom box" portable radio on the floor and that Larry Williams, also known as Little Larry, and Louis Nix, also known as Bird, were also in the apartment.

The victim next testified that Maul touched her breast, and that she knocked his hand away. Mims then pulled her into the bedroom and Blue followed. Blue told her that she had better do what Mims wanted. Mims then slapped her, threw her against the wall and to the floor, and had sexual intercourse with her while she fought and screamed. Mims then told Blue that he could do what he wanted to her. Blue then had sexual intercourse with her and threatened to kill her. Maul, Bird, and Williams then had sexual intercourse with her while she fought and screamed. Someone then grabbed her from behind, and Mims, Blue, and Williams had oral sex with her. Mims then urinated in her mouth and on her face.

According to the victim, she was then carried to the living room where her clothes were taken off and she was surrounded by the men, including two new individuals, a man known as "Player" and a man with a "jericurl." Blue then had anal intercourse with the victim and "burned" her with a coat hanger whenever she screamed. Maul, Bird, Blue, Player, and the man with the jericurl then had repeated sexual intercourse and oral sex with her. Mims, Maul, and Williams left the apartment, and Blue and Bird took the victim to the bedroom where they had repeated sexual intercourse and oral sex with her over a period of several hours.

According to the victim, Batman was in the apartment when all these events occurred, but he never did anything. Whenever she screamed or yelled, someone turned up the volume on the "boom box" radio. She subsequently heard a knock on the apartment door and heard Mims and a girl come into the apartment. She heard the girl refer to Mims as "Raymond." Mims then went into the bedroom and had sexual intercourse with the victim. A stout man with glasses then went into the bedroom and had sexual intercourse with her. She then convinced Blue to leave her alone in the bedroom, and she locked the door. She then put on her panties, the only article of her clothing that she could find in the bedroom, and she jumped out of the second floor window and ran. A couple saw her, took her to their apartment, and called the police. The victim then went to the apartment with two police officers and identified Mims and the girl with him. According to the victim, all the other men and the "boom box" radio were gone. According to the victim, the girl said Mims had been with her all evening and Mims said he had never seen the victim before. The girl subsequently admitted that Mims had not been with her all evening.

II

Mims contends that the trial court abused its discretion in denying his motion to sequester the jury on the ground that a juror might have seen prejudicial publicity about his case in the media.

There is a rebuttable presumption that an accused is not prejudiced when the jury is allowed to separate. Section 12-16-9(d), Code of Alabama 1975; Reeves v. State, 432 So.2d 543 (Ala.Cr.App.1983).

In the case at bar, the record indicates that the trial judge cautioned the jury repeatedly not to read any newspaper articles about this case and not to discuss the case with anyone. There has been no showing that any juror saw any prejudicial news media report. During the voir dire proceedings, not one veniremember was examined in chambers about his or her familiarity with the case; hence, no juror was struck for cause because of familiarity with the facts of Mim's case. Furthermore, the daily colloquy between the trial court and the jurors concerning their exposure to news coverage revealed that the jurors did not read, see, or hear any media report of the trial.

Because Mims has not rebutted the presumption that he was not prejudiced by the jury's separation, the trial court did not abuse its discretion in permitting the separation.

III

Mims contends that the State denied him his right to equal protection in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by using peremptory challenges to systematically exclude males from the jury.

This court has recently held that the standards of Batson do not extend to gender-based peremptory strikes and that Batson applies to prohibit the exercise of peremptory challenges on the basis of race only. Fisher v. State, 587 So.2d 1027 (Ala.Cr.App.1991).

Mims's corollary contention that he was denied his right to a fair trial by an impartial jury and a fair cross-section of the community as a result of these strikes is likewise without merit.

"We have never involved the fair cross-section principle to invalidate the use of either for-cause or peremptory challenges to prospective jurors, or to require petit juries, as opposed to jury panel or venires, to reflect the composition of the community at large." Lockhart v. McCree, 476 U.S. 162, 173, 106 S.Ct. 1758, 1765, 90 L.Ed.2d 137 (1986).

Mims has pointed to nothing in the record which would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected which would have warranted the trial court's granting his Batson motion or his motion for new trial.

IV

Mims contends that the trial court committed reversible error in admitting into evidence a pistol found hidden in the apartment where the alleged crimes occurred because 1) the pistol was not sufficiently connected with either Mims, his codefendants, or the crimes charged, and 2) the apartment where the gun was discovered, several hours after the police search, was never secured to ensure against the possibility of tampering.

On March 15, 1989, the day after the alleged crimes occurred and several hours after the police had searched the apartment in question, the apartment manager and the maintenance man went to the apartment to clean it and to change the locks. The front door to the apartment was unlocked, and they observed an air conditioner vent down in the kitchen. When the maintenance man got up on the counter to replace the vent, he discovered a .357 revolver hidden inside the duct work. He gave the gun to the manager, who turned it over to a Birmingham police officer, who testified that he in turn turned it over to an evidence technician with the police department.

Although the victim testified at trial that one of her attackers, Blue, had a gun tucked in his pants and that he had threatened to kill her when he raped and sodomized her, she was never asked to identify the .357 revolver as the gun which Blue had tucked in his pants.

Officer Greg W. Carden, a Birmingham police evidence technician, testified that he processed the .357 revolver for fingerprints and that one print was lifted from the gun and turned over to the identification bureau, but that he had not received a report regarding the submission. Carden thus did not know if the print was successfully matched to anyone charged in the case.

The .357 revolver was subsequently admitted into evidence over the objections of the three codefendants 1) that there was no evidence linking it to any of ...