Pittman v. State

• Decision Date: 08 May 1984
• Docket Number: 4 Div. 219
• Citation: 460 So.2d 232
• Parties: Jimmy PITTMAN and Wanda Pittman v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 232

460 So.2d 232

Jimmy PITTMAN and Wanda Pittman v. STATE.

4 Div. 219.

Court of Criminal Appeals of Alabama.

May 8, 1984.

Rehearing Denied July 17, 1984.

Certiorari Denied as to Jimmy Pittman Nov. 30, 1984

Alabama Supreme Court 83-1204.

Certiorari Pending as to Wanda Pittman Alabama Supreme Court 83-1221.

Samuel L. Adams, Dothan, for appellants.

Charles A. Graddick, Atty. Gen., and James E. Hasser, Jr., Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

This is a consolidated appeal of two cases, one against each of the defendants (appellants), which by consent of parties were consolidated for trial before a jury. Jimmy Pittman was found guilty of rape in the first degree, in that he did engage in sexual intercourse with a female by forcible compulsion, in violation of Section 13A-6-61 of the Criminal Code, and Wanda Pittman was found guilty of "aiding and abetting" a male in committing the same alleged rape. Each defendant was sentenced by the court to imprisonment for life.

At the time of the trial, the alleged victim, who testified as a witness for the State, was thirteen years old and was residing at Saint Mary's Home in Mobile in the custody of the Department of Pensions and Security. During the time of the incident or incidents upon which the prosecutions were based, the victim had been living in the home of the defendants, a married couple. Wanda Pittman was her adoptive mother, and by virtue of that relationship Jimmy Pittman was the victim's stepfather. The victim had been living with the defendants practically all of her life.

A recital of the sexually explicit testimony pertinent to the alleged crimes is unnecessary for a proper determination of the issues involved on appeal. It should be stated, however, that there was substantial evidence that on one or more occasions Jimmy Pittman had sexual intercourse with the alleged victim. This evidence consisted almost exclusively of the testimony of the alleged victim. Her testimony as to vaginal penetration was corroborated by the testimony of an examining physician.

Jimmy Pittman testified in emphatic denial of sexual intercourse and any attempt to have sexual intercourse with the alleged victim at any time. Wanda Pittman testified emphatically that she had never aided Jimmy Pittman in any effort by him to have sexual intercourse with the alleged victim and had no knowledge of any such incident. The denials of guilt by defendants were bolstered somewhat by testimony of two children of the defendants tending to show that the alleged crimes did not occur. Testimony by Jimmy Pittman's mother was to the effect that she had witnessed some unbecoming conduct between the alleged victim and some boys. There was substantial testimony by some witnesses as to the good reputation of the defendants.

Five issues are presented in appellants' brief. However, three pertain exclusively to the case against appellant Wanda Pittman. We will defer consideration thereof until after our discussion of the two issues pertinent to the cases of both appellants.

Appellants assert that the "State did not prove forcible compulsion as alleged in the indictments."

During the lengthy testimony of the alleged victim, she said:

"A. Okay. He [Jimmy Pittman] came into my room. See, I was holding the door and finally I--

"Q. Let me interrupt you. Did you hear him at the door or what happened?

"A. I heard him trying to unlock it with something. I don't know what it was.

"Q. You had your door locked?

"A. Yes, sir.

"Q. All right.

"A. And, I lost all my strength and I yelled real loud and I think my brothers woke up, because he went in the room and he asked them if they ever had a nightmare. And they said no. And he told them that is what I was having. So he came back to my room and I picked up my brush. I was going to hit him with it, because I was scared. He said come to your mother's room. So, I walked across the hall to my mother's room. And, I said Mama and she said what in a harsh voice and I turned around to her and I said Mama, why are you mad at me? And she turned back around and I said why are you mad at me. And, you know, I figured out they was mad at me because I woke my brothers up. So they made me lay down on the bed and they started talking. I heard her, heard Mama say leave her alone, leave her alone twice. And then they whispered some more and then Mama said Karen, ¹ tell me what you said about the rape. And I told her his name. [This was with reference to an unrelated incident, not involving the alleged victim in the instant case or any member of her family]. She said well, roll over for your daddy and I said no. And she said either you will roll over or I will tie you down. So naturally, I rolled over and he started, you know, raping me. Then, Mama got over there and she unbuttoned my nightshirt and raised up my bra. And then she stuck my knees straight up and then, you know, straight out and then he raped me again. After he got off of me, I left the room.

"Q. What happened after you left the room? Where did you go then?

"A. I went to the bathroom and then I went to my room and went to bed.

"Q. Was there any more contact with him that night?

"A. No."

Other incidents essentially the same as that just quoted were related in the testimony of the alleged victim.

Notwithstanding the undesirable incoherence in some respects of the testimony of the alleged victim as to the extent of "forcible compulsion," we are convinced that the testimony was sufficient to present a jury question as to the existence of said element of rape in the first degree. It meets the requirement of the first alternative of "forcible compulsion" of Alabama Criminal Code, § 13A-6-60(8), which sets forth two alternative requirements as follows:

"FORCIBLE COMPULSION. Physical force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person."

It is clear that the force required to consummate rape in the first degree is necessarily relative. The force required to consummate the crime against a mature female is not the standard for application in a case in which the alleged victim is a child thirteen years of age.

The next issue presented by both appellants is thus stated in brief of their counsel:

"WAS A CONVERSATION BETWEEN ZELMA FLOYD, AN EMPLOYEE OF THE HOUSTON COUNTY DEPARTMENT OF PENSIONS AND SECURITY, AND WANDA PITTMAN ADMISSIBLE IN EVIDENCE WHEN THERE WAS NO SHOWING THAT WANDA PITTMAN HAD BEEN ADVISED OF HER RIGHTS ON THE OCCASION AS MRS. PITTMAN WAS UNDER INVESTIGATION BY THE DEPARTMENT FOR THE RAPE FOR WHICH SHE WAS LATER PROSECUTED?"

During the direct examination by the State of the witness Velma Floyd, she testified as follows:

"Q. Did she tell you that she did leave Karen by herself with Jimmy Pittman in a motel in Tallahassee and Karen begged her not to leave her there alone with Jimmy Pittman?

"A. She admitted that to me in my office.

"Q. Did she ever tell you that Karen said she would like to stay or agreed to stay?

"A. No."

There was no objection by defendant to the quoted inquiry. However, on cross-examination, the witness disclosed that at the time Wanda Pittman told the witness about the incident in a motel in Tallahassee, the witness "never gave any Miranda warning to Wanda Pittman" prior to the time the witness talked with Wanda Pittman. Thereupon, the following occurred on cross-examination:

"Q. And, you never followed the necessary or the other steps necessary for taking a statement from a Defendant?

"MR. SORRELLS [District Attorney]: Judge, we object to that.

"THE COURT: Well, she wasn't under arrest there, Sam.

"I sustain the objection.

"BY MR. ADAMS:

"Q. At that time, had an investigation centered on Jimmy and Wanda Pittman?

"A. At the time Mrs. Pittman was in my office?

"Q. Right.

"A. Yes, sir.

"MR. ADAMS: That is all. Thank you.

"MR. SORRELLS: That is all we have.

"THE COURT: You may step down.

"(Witness excused)."

Appellants' argument in their brief as to the issue now under consideration concludes as follows:

"Therefore, it appears that evidence obtained from Mrs. Pittman by Mrs. Floyd should not have been admissible against Mrs. Pittman because she had not been advised of her rights. As this was a critical stage in the prosecution of this case."

It appears therefrom that appellant Jimmy Pittman presents no issue as to the question as to the admissibility against him of the testimony of Mrs. Floyd. By reason of what we determine hereinafter as to the issues pertinent to the case against Mrs. Pittman exclusively, we find it unnecessary to determine the particular issue now under consideration.

The final contention for a reversal by both appellants is based upon what occurred during the testimony of Donna Hanson, who had been recalled as a witness by defendant in surrebuttal of the testimony of Phillip Hardy, who had testified somewhat disparagingly as to the "general reputation for truth and veracity" of Donna Hanson, whom Phillip Hardy, the principal of Carver Middle School, had known while Donna was a student at the school. Donna Hanson had testified that the alleged victim had told her that Jimmy Pittman never raped her. Principal Hardy had testified on cross-examination by defendants that he had based his disparaging testimony as to the reputation of Donna Hanson on the following:

"A. Because there have been situations where she has not told the truth in the past.

"Q. Has not told the truth to you about what?

"A. Specifically concerning one situation where she and another student that had been in this Court Room also, I believe were in essence, skipping class.

"Q. Who was the other student that was skipping class?

"A. Karen [Surname of alleged victim, now omitted]."

The transcript shows the following during the direct examination of Donna Hanson while she was on the stand as a surrebuttal witness of defendants:

"Q. ...