Richerson v. State

• Decision Date: 14 April 1995
• Docket Number: CR-93-1285
• Citation: 668 So.2d 130
• Parties: Chester RICHERSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 130

668 So.2d 130

Chester RICHERSON v. STATE.

CR-93-1285.

Court of Criminal Appeals of Alabama.

April 14, 1995.

Rehearing Denied June 16, 1995.

Certiorari Denied Aug. 25, 1995

Alabama Supreme Court 1941492.

Appeal from Baldwin Circuit Court, No. CC-91-1340; Pamela Baschab, Judge.

George R. Kolb, Jr., Foley, for Appellant.

Jeff Sessions, Atty. Gen., and Steve Willoughby, Asst. Atty. Gen., for Appellee.

COBB, Judge.

This case was originally assigned to another judge on the Alabama Court of Criminal Appeals. It was reassigned to Judge Cobb on January 17, 1995.

Chester Richerson, the appellant, was convicted of sexual abuse in the first degree, a violation of Ala.Code 1975, § 13A-6-66(a)(3). He was sentenced to seven years in the penitentiary. After a pretrial hearing, the trial court ruled admissible out-of-court statements made by the child victim, R.R., pursuant to Ala.Code 1975, § 15-25-32(2)(a)(5) and § 15-25-37. The issues raised on appeal concern the Child Physical and Sexual Abuse Victim Protection Act. Ala.Code 1975, § 15-25-30 through § 15-25-40.

FACTS

The following facts were adduced at trial. The appellant is the father of the three-year-old victim, R.R. Homer Salter lived next door to R.R. and her family and spoke with the appellant and R.R. almost everyday. He was outside at approximately 3:30 a.m. one summer morning in 1991 and he heard R.R. "screaming and ... hollering [from the appellant's bedroom]: 'Take it out, it hurts.' " Then he heard the appellant say: "Hush, I be through in a minute." Salter stated that "[i]t sounded like somebody was killing [R.R.] or tearing her up." R. 238-39. After a few moments Salter heard footsteps "walking down the hall [of the appellant's house] towards the bathroom and the racket ... stopped all at once." R. 245. Salter reported what he had heard to the Department of Human Resources (DHR). Six months later Salter saw R.R. at the courthouse and "[s]he ... got in my lap and I said: 'Hello, [R.R.].' And she said: 'I ain't [R.R.] no more.' She said: '[the appellant] hurt [R.R.]." R. 244.

Sue Joy is the family supervisor for the family children services program of DHR in Baldwin County. She works with sexually abused children while they are in foster care. She was presented as an expert witness for the State. She testified that she received a telephone call on Saturday July 20, 1991, at 7:30 a.m. from Homer Salter reporting the possible sexual abuse of R.R. She immediately made the necessary arrangements to have R.R. and her siblings picked up by the DHR and to have each child examined by a physician on July 20. R.R. told Joy only that "she had been hurt," but not by whom. R. 367. It was Joy's opinion, based on R.R.'s demeanor, how frightened she was, and the medical evidence that "[R.R.] had gone through some traumatic event." R. 373. Ultimately R.R. was placed in a foster home.

Doctor Rhoda Burns, a pediatrician at Eastern Shore Children's Clinic in Mobile, was presented as an expert witness for the State. She examined R.R. on Saturday July 20, 1991. R.R.'s genital examination revealed characteristics consistent with someone having had sexual intercourse within 24 to 36 hours before the examination. It was Dr. Burns's opinion that R.R. had been sexually abused.

Mary Burns, a counselor at the Baldwin County Mental Health Center, was presented as an expert witness for the State. In September 1991 R.R. told Burns that she had been sexually abused. On one occasion R.R. reenacted what had happened by taking "the pants off the [appellant] doll and [R.R.] put [the doll representing the appellant] on top of the little baby [R.R.] doll, and moved them back and forth. And then she became very upset." R. 317. On another occasion R.R. told Burns "through [the use of a] turtle puppet that her mother told Chester to stop because he was hurting [R.R.].... She stated that it happened many times, not just once." R. 324. R.R. has also "complained that ... she was afraid that [the appellant] was going to find her and hurt her again." R. 332. R.R. has also "asked [Burns] ... why her mother would let that [sexual abuse] happen." R. 335. Burns concluded that it was her opinion that "[R.R.] has been sexually abused by [the appellant]." R. 338.

Karen Dixon was R.R.'s foster parent from September 16, 1991, until April 1992. She testified that R.R. would not permit anyone to address her by her nickname because that was the name the appellant used to address her. Once during a bath, R.R., referring to her genitals, said, "Don't touch me down there, that's where [the appellant] had hurt me" and "Don't touch me there." R. 452. During another bath R.R. stated that "[the appellant] had touched my teetee." R. 463. On another occasion R.R. started crying after being called "precious" and she said, "Don't call me precious, don't ever call me precious. That's what [the appellant] called me while he was hurting me." R. 455. R.R. also told Dixon that "her mom knew that [the appellant] and [her brother] had hurt her." R. 453. She told Dixon that "[her mother] knew [the appellant] hurt me because she cleaned ['that blood'] up." R. 455, 462. After a visit with her mother, R.R. told Dixon that "[her mother] told [her] that if [she] said [the appellant] didn't hurt [her], [her mother] promised that she wouldn't let [the appellant] hurt [her] anymore if [she] came home." R. 471.

Sharon Whisonant is a social worker with the Baptist Children's Home in Mobile. Whisonant was R.R.'s social worker when R.R. was placed in a foster home. R.R. told Whisonant that the appellant had "hurt [her] in a private place." R. 405.

Loretta Ponquinette, a counselor at Lemoin Center, a Mobile mental health facility testified that R.R. disclosed allegations of sexual abuse the first time she saw R.R. in June 1992. According to Ponquinette, R.R. was noticeably aggressive toward the doll used in therapy that represented her father. R.R. also drew a large penis on drawings of her father.

Wendy McIntosh, a social worker in the foster care unit of DHR in Baldwin County, had been working with R.R. since June 1992. R.R. told McIntosh that she did not like living with her parents because "[the appellant] hurt me and [her sister] and gave us bad touches in the wrong place.... [and] I would get hurt again [if she went home]." R. 478. McIntosh also testified that R.R.'s 11-year-old sister, C.R., stated that "[the brother, V.R.,] had messed with [C.R.] 'too' ... [and] while [the appellant] was molesting the girls that [the mother] would be messing with the boys." R. 510-11.

Donald Rolie worked in the investigation follow-up and foster care division of DHR at the time of the incident. He testified that he heard R.R. tell her mother that she was not going home because "[V.R.] and [the appellant] hurt me." R. 522.

John Stewart is an investigator with the Baldwin County Sheriff's Department assigned to the child sexual assault unit. He was contacted by DHR on the morning of July 20, 1991, to serve a court order on the appellant, which ordered that the appellant's children be taken by DHR for medical examinations based on the suspicion of child abuse. The appellant told Stewart that he and his wife sleep in twin beds because he has a painful back injury. He told Stewart that R.R. slept in their room in the bed with his wife. R.R.'s mother told Stewart that on the morning of July 20 R.R. had screamed out at 3:00 a.m. or 4:00 a.m. when she hurt her finger and R.R. had to be taken to the bathroom to "doctor" it.

I

The appellant raises several constitutional challenges to Ala.Code 1975, §§ 15-25-30 through -40. The only constitutional challenge preserved for appellate review at the trial concerned the Confrontation Clause of the United States Constitution. United States Const., Amend. VI. " 'The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.' Ex parte Frith, 526 So.2d 880, 882 (Ala.1987). 'The trial court cannot be placed in error on grounds not asserted.... The court was required to pass only upon the ground of the objection specified by the appellant and those not announced are waived.' Johnson v. State, 421 So.2d 1306, 1311 (Ala.Cr.App.1982)." Riddle v. State, 661 So.2d 274 (Ala.Cr.App.1994). " 'Even constitutional rights have to be seasonably raised in the trial court before they will be considered by this Court.' Block v. State, 455 So.2d 1011, 1012 (Ala.Cr.App.1984)." Rika v. State, 587 So.2d 1054 (Ala.Cr.App.1991).

Sections 15-25-31 and -32 Ala.Code 1975, permit a child witness to be considered unavailable to testify. Unavailability under the Alabama statute is not limited to physical unavailability but includes the inability of a child to testify under any conditions caused by a variety of infirmities.

"Section 15-25-32 states that an out-of-court statement of a victim can be admitted in two situations: where the victim testified by means of a videotaped deposition or closed circuit television and was subject to cross-examination concerning his or her out-of-court statements (subsection 1), or where the child is unavailable, i.e., the child is dead, the defendant has intentionally removed the child from the court's jurisdiction, the child has suffered a total failure of memory, the child is physically or mentally disabled, the child is incompetent, or the child would most probably suffer severe emotional trauma from testifying at the proceeding (subsection 2)."

Latimer v. State, 659 So.2d 129 (Ala.Cr.App.1994) (victim gave a videotaped statement).

The appellant contends that § 15-25-32(2) violates his Sixth Amendment right to confront an adverse witness. The appellant argues that this court should overrule Dilbeck v. State, 594 So.2d 168, 174 (Ala.Cr.App.1991) ("the Confrontation Clause does not erect a per se rule barring the admission of prior statements of a declarant who is unable to communicate to...