Primm v. State

• Decision Date: 23 April 1985
• Docket Number: 4 Div. 927
• Citation: 473 So.2d 1149
• Parties: Columbus Fletcher PRIMM, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1149

473 So.2d 1149

Columbus Fletcher PRIMM, Jr. v. STATE.

4 Div. 927.

Court of Criminal Appeals of Alabama.

April 23, 1985.

Rehearing Denied May 28, 1985.

Certiorari Denied Aug. 23, 1985

Alabama Supreme Court 84-906.

Ernest H. Hornsby of Johnson, Huskey, Hornsby & Etheredge and Edward M. Price, Jr. of Farmer, Price, Espy & Smith, Dothan, for appellant.

Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Columbus Fletcher Primm, Jr. was indicted for rape in the first degree in violation of § 13A-6-61, Code of Alabama 1975. The jury found the appellant "guilty as charged in the indictment" and the trial judge sentenced him to life imprisonment in the penitentiary.

The prosecutrix testified that on April 7, 1980, she was in Dothan on business and checked into the Sheraton at approximately 4:30 p.m. As she was walking to her room she saw a man, whom she identified as the appellant, standing near the lobby door. The appellant told her that he was conducting a meeting for ladies that afternoon and needed to know where the meeting rooms were. The prosecutrix stated that she did not know and proceeded to her room. After she opened the door, the prosecutrix walked over to the bed to put down her luggage. At this point she heard a knock on the door. The appellant was standing at the door with her key in his hand. The prosecutrix thanked him for the key and closed the door.

A little later in the afternoon the prosecutrix went out to get dinner and then returned to her room to do some work. After working for a while, she went back out to her car to get some other work. As she was returning to her room, she noticed the appellant was walking behind her. When she got to her door, the appellant stuck a gun in her back and pushed her in the room.

The prosecutrix started screaming. She was told to shut up and laugh, which she did. The appellant turned off the front light of the room and told her to turn off the back light. At this point, the appellant stood at the window and looked out for about thirty minutes. He told the prosecutrix that he was waiting for friends to pick him up. She asked if this had anything to do with drugs and he replied in the affirmative.

At this point, the appellant told the prosecutrix to take her clothes off and masturbate. She complied with his order because he kept the gun on her during this time. The appellant then approached the bed, pulled down his jeans and began to masturbate. He made the prosecutrix slide down to the end of the bed. He laid the gun down beside the bed and forced himself upon her.

Once the appellant had penetrated her, the prosecutrix told him she was not on the pill and did not want to get pregnant. The appellant ejaculated on her stomach.

The appellant then went in the bathroom and turned on the water in the bathtub and ordered the prosecutrix to get in it. He told her not to call the police and then closed the door and left.

When the prosecutrix got out of the bathtub she noticed the towel with which the appellant had cleaned himself up. She then called the desk clerk and insisted she be moved to another room. When the desk clerk learned that the prosecutrix had been raped, she urged her to call the police. The prosecutrix initially hesitated, but after talking with the desk clerk and the assistant manager, she agreed.

After talking to the police, the prosecutrix went to the hospital for an examination.

On December 9, 1980, the prosecutrix was again in Dothan on business. While driving down the by-pass, she noticed the appellant driving next to her in a light colored Volkswagon. When the appellant turned off the by-pass into the Ramada Inn parking lot, the prosecutrix got the car's tag number and went to the Sheraton and called the police.

Louis Miller, an officer with the Dothan Police Department, testified that he received a call from the prosecutrix on December 9, 1980. She gave him a description and a tag number of a vehicle. In response to the call, Miller went to the Ramada Inn and found a light colored Volkswagon which had a tag number that matched the one he had been given. A man eventually got in the car and Miller attempted to follow the car but lost it in traffic. Miller then obtained the address of the person to whom the tag was registered and he proceeded to that residence. Once there, Miller saw the appellant come out of the house, get into the car and go to the grocery store. When the appellant returned to his house, Miller asked the appellant if he could speak with the person who had been at the Ramada Inn in the Volkswagon that afternoon. The appellant denied that he had been at the Ramada and said no one had driven the car since he got home from work. Miller called the appellant later that night but the appellant refused to talk to him.

Alise Speck Marshall testified that in November of 1978 she traveled a great deal as part of her employment with Alabama Bank Corporation. On November 19, 1978, at approximately 6:30 p.m., she arrived at the Holiday Inn in Dothan. After she parked her car near the room which she had been given she proceeded to her room. Marshall was carrying some work in her arms. When she unlocked the door to her room, she turned around to turn on the lights and close the door. At this point a man, whom she identified as the appellant, came in behind her with a gun in his hand. She started to scream and he told her to shut up and start laughing. The appellant then turned on the television and looked out the window. After a while, he told her to take off her clothes. She resisted and he told her to go into the bathroom. She then began taking off all her clothes except her underwear. She told him she was having her period and did not wish to take them off. At this point he turned on the water in the bathtub and told her to sit down in it. The appellant instructed her not to call the police and then left. Marshall then called the police.

In December, 1980, Marshall picked the appellant's picture out of a group of photographs shown to her by the Dothan Police Department.

The appellant testified that on April 7, 1980, he got off from work early and went home and took a nap. When he waked up he went to O'Leary's Lounge at the Sheraton Inn at approximately 5:00 p.m. When he got out of his car in the parking lot he saw the prosecutrix. The two happened to walk together in the breezeway of the motel and they had a brief conversation. The appellant asked her for a drink and she told him she would take a raincheck because of all the work she had to do. He told her to think about it and he went into the lounge and she went to her room.

The appellant left the lounge around 6:00 and when he got to the parking lot he again saw the prosecutrix. He again asked her to have a drink and she told him she really had a lot of work to do. The appellant said something about all work and no play and she began to laugh and said "why not?".

The two began walking toward her room so she could put her work down. When they got to her room, she opened the door and the two stepped inside. She put her work down on the bed and told him to shut the door.

After the two talked a while, they began kissing and caressing. Eventually the two engaged in intercourse. He could not ejaculate because, during the course of the act, he began having guilt feelings.

At this point, the appellant started to dress and the prosecutrix made several comments about his shortcomings. He cleaned himself up and the prosecutrix went to take a shower. The appellant asked if she still wanted to have a drink and she replied that she didn't. He then left and went home. He denied having a gun on that occasion or using force.

On December 9, 1980 at 5:30 p.m., the appellant went to the Ramada Inn. He didn't see the prosecutrix on his way there. Shortly, he left the Ramada and went home. After cutting firewood, he went to the grocery store. When he got back, the police were there. They asked him if anyone had been at the Ramada driving the light colored Volkswagon that afternoon. He said he had not been at the Ramada and no one had driven the car that afternoon.

The next day the appellant was arrested.

Elaine Scott, a criminalist in forensic serology with the Department of Forensic Sciences, testified that she had examined a bedspread, two bath towels and a wash cloth which were sent to her in connection with this appellant's case. After performing various tests, she was unable to detect the presence of seminal fluid on any of these items. She also did not find the presence of seminal fluid after vaginal and anal swabs were sent to her in this case.

Charles Brooks, a crime lab analyst with the Department of Forensic Sciences, testified that he examined the same items that Scott had examined. He was unable to find any evidence of the head or pubic hairs of the appellant.

Dr. J.M. Jones, Jr. stated he conducted a pelvic examination of the prosecutrix at 9:25 p.m. on April 7, 1980. He saw no signs of violence and there was no sperm present in her vaginal secretions.

In rebuttal, Jessie Lanier testified that she worked for the Internal Revenue Service. On November 8, 1978 she was in Dothan on business and was staying at the Ramada. At approximately 5:30 that afternoon, she was walking toward her room. As she walked up the stairs with her briefcase in her hand, she noticed someone at the bottom of the stairs. When she got to her room, the man at the bottom of the stairs was standing at the door of the room next to hers. She identified that man as the appellant. Lanier opened the door to her room and walked in. The appellant followed her in. He had a gun and she screamed. He told her to shut up but she continued screaming and he left.

I

The appellant claims the trial judge erred by refusing to grant his motion for change of venue due to extensive pre-trial publicity surrounding his case and others in which he was allegedly...