Myers v. State, 4 Div. 812
| Citation | 401 So.2d 288 |
| Decision Date | 26 May 1981 |
| Docket Number | 4 Div. 812 |
| Parties | James Rolland MYERS, III v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Keith Watkins of Clower & Watkins, Troy, for appellant.
Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.
Rape; sixty years.
Doctor T.K. Byrne testified that he examined the prosecutrix, a blonde, around midnight November 19, 1979, in the emergency room of Baptist Hospital in Montgomery. He stated that the prosecutrix told him that between 6:40 and 8:00 P.M. that evening she had been tied with a rope, dragged into a corn field near her home in Brundidge, and repeatedly raped. Dr. Bryne's examination revealed the following: a rope burn around the prosecutrix' neck; a knot on one side of her nose; several bruises on her back; a three-quarter inch laceration in her vagina accompanied by a small amount of bleeding; and evidence of recent sexual intercourse.
Ms. Lacy Ann Mitchell testified that on the night in question she worked at a store near the prosecutrix' home. Around 6:30 P.M. the prosecutrix entered the store and asked Ms. Mitchell for a ride home. Ms. Mitchell gave the prosecutrix a ride on her motorcycle to an intersection approximately one-half mile from the prosecutrix' home.
The prosecutrix testified that after being dropped off at the intersection by Ms. Mitchell, she began walking home and sensed something behind her. When she turned, a man put his hand over her mouth and told her not to scream or he would kill her. The prosecutrix identified the appellant as her assailant. She stated that they fought and the appellant knocked her down. He placed a rope around her neck and dragged her by her hair and the rope about twenty-five yards to the edge of a corn field and a wooded area. He tied her hands behind her back, removed her bluejeans and panties, placed his toboggan over her head, and raped her three times.
The prosecutrix stated that the appellant talked to her a great deal, and that she talked back to him, saying whatever he wanted her to say so that she could get away from him.
As soon as the appellant let her go, she ran to her sister's house. The prosecutrix told her family that she had been assaulted but she did not mentioned being raped. She notified the Brundidge Police Department of her attack and gave them a description of her assailant.
The Brundidge Police picked up the appellant about 3:45 A.M., on November 20 as he was hitchhiking.
Pike County Sheriff Harold Anderson, with the assistance of the prosecutrix, searched the area where the rape occurred and found some footprints in a ditch on the side of the road. Sheriff Anderson testified that he observed the appellant's shoes and had made footprint comparisons several times in the past. He measured the length and width of the footprints found in the ditch as well as the dimensions of the appellant's shoes and concluded that the footprints pointed out by the prosecutrix were made by the appellant's shoes.
On voir dire examination, Sheriff Anderson testified that on November 20, around 4:00 A.M., the appellant was given his Miranda warnings and signed a waiver of rights form. No inducement, promise, hope, or reward was offered to the appellant. Sheriff Anderson testified that the appellant was in custody although he had not been arrested. He did not inform the appellant of the crime under investigation, but told him "that somebody had caught a girl" below town and that his description fit the one that had been given to him.
Pike County Deputy Sheriff Don Herring testified on void dire examination to a second statement made by the appellant on November 20, 1979, around 8:00 A.M. The appellant had been in custody about four hours. Deputy Herring gave the appellant his Miranda warnings. He testified that no inducement, promise, hope, or reward was made to the appellant to make the statement. The appellant signed a waiver of rights form. Deputy Herring told the appellant that a girl had been raped in the area and that they had a good description of the assailant. He informed the appellant that he was taken into custody and arrested because he was suspected of committing the crime. Deputy Herring asked the appellant if he wanted to make a statement to which the appellant replied that the had done nothing wrong. The appellant then made a statement which he wrote and signed.
In the presence of the jury, Sheriff Anderson and Deputy Herring repeated their voir dire testimony concerning the appellant's statements. Both statements were admitted into evidence and read to the jury. In the first statement, the appellant said that he had arrived in the area before dark on November 19, 1979, and slept in a ditch alongside Highway 231. The appellant did not see any girls on a motorcycle and did not molest any girl. He stated that no one had worn his toboggan and some blonde hairs found in it were not his. The appellant consented to a search of his travel bag.
In the second statement, the appellant admitted that he was standing by the side of the road when a motorcycle with two girls on it came by. One of them got off the motorcycle and started walking down the road. The appellant approached her and spoke. They talked for a while and the appellant asked the girl if she wanted to have sex, to which he said she affirmatively replied. The appellant stated that they continued to walk down the road and talk. He said they went into a field where the girl disrobed and they had sex. The appellant stated that they kissed, the girl expressed a desire to see him again, and then she went into her house and he walked back to the highway. He said he walked down the highway until he got tired and had to sleep. A noise awakened him and he continued to walk. Shortly thereafter he was picked up by the police.
The contents of appellant's travel bag were admitted into evidence, including a piece of rope, a toboggan, and appellant's clothes.
Mr. William Landrum, a criminalist for the Department of Forensic Sciences was called to the witness stand to testify to analyses he had performed on items and specimens gathered in the instant case. Landrum said that his examination revealed the presence of semen on the appellant's underwear of the same type found in the prosecutrix and on her panties. He also found traces of blood on the rope belt but could not identify it.
At the conclusion of the State's case the appellant moved to exclude the evidence, and the motion was denied.
The appellant called Brundidge Police Officer Lige Hester to the witness stand. He testified that on November 19, 1979, between 7:00 P.M. and 7:30 P.M., he heard a bulletin on his police radio monitor at home concerning the instant incident. On November 20, around 3:34 A.M., he received a radio dispatch apparently concerning the location of someone fitting the description of the suspect. Officer Hester drove to a point about one hundred and fifty to two hundred yards from the intersection of Highway 231 and County Road 2 and picked up the appellant. The appellant fit the description broadcast earlier. He advised the appellant that they checked all hitch-hikers in their jurisdiction. Officer Hester transported the appellant to the police station where they met Sheriff Anderson. The appellant made his first statement in Officer Hester's presence with Officer Hester writing what the appellant said. After its completion, the appellant read and signed it.
Officer Hester testified that the blonde hairs discussed in the statement refer to those found on the appellant's toboggan. He stated that Sheriff Anderson advised the appellant of his rights and what crime he was suspected of committing.
Officer Hester's testimony concluded the presentation of the appellant's case.
Appellant contends that the trial court erred in admitting his two statements. He argues that the waiver of his Miranda rights was not knowingly and intelligently made because he was not informed that he was a rape suspect.
The question whether a confession or inculpatory statement was voluntarily made is one of law, to be determined by the trial judge. Harris v. State, 280 Ala. 468, 195 So.2d 521 (1967); Bufford v. State, Ala.Cr.App., 382 So.2d 1162, cert. den., Ala., 382 So.2d 1175 (1980); Crawford v. State, Ala.Cr.App., 377 So.2d 145, affirmed, Ala., 377 So.2d 159 (1979). The trial court need only be convinced from a preponderance of the evidence to find a confession or inculpatory statement to have been voluntarily made. Lego v. Twomey, ...
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