Sexton v. State

• Decision Date: 26 April 1988
• Docket Number: 3 Div. 535
• Citation: 529 So.2d 1041
• Parties: Windell Lane SEXTON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1041

529 So.2d 1041

Windell Lane SEXTON v. STATE.

3 Div. 535.

Court of Criminal Appeals of Alabama.

April 26, 1988.

Rehearing Denied May 24, 1988.

Certiorari Denied July 29, 1988

Alabama Supreme Court 87-1047.

Stephen M. NeSmith, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Windell Lane Sexton was convicted of the first degree rape and first degree sodomy of his five-year-old daughter. He was sentenced to two concurrent terms of twenty-five years' imprisonment. He raises seven issues on this appeal from those convictions.

Four witnesses testified for the State: the prosecutrix; Dr. Judi Jehle, the gynecologist who examined the child three months after the alleged rapes and sodomies; Dr. Guy Renfro, the clinical psychologist who treated the prosecutrix; and Richard Vass, the prosecutrix's seventeen-year-old half-brother.

The prosecutrix's testimony established the elements of rape and sodomy. In addition, the child testified that her father urinated and defecated on her, and then made her eat his feces. She testified that she threw up and that he made her "eat the throw up." She testified that these incidents occurred daily for a period of several months but she did not tell her mother for some time.

Dr. Jehle testified that the child had a perforated hymen but found no evidence of tearing or scarring. She stated that the child's "vaginal introitus was several centimeters wide. I was able to admit my index finger without any problems but I doubt that there could have been anything a whole lot larger than that that would have been able to, that would have penetrated the vaginal vault." Dr. Jehle testified that, although it was unusual for a girl so young to have a perforated hymen, she was unable to "arrive at a conclusion that there had been any trauma" since her examination was done three months after the alleged incidents took place. She stated that it was possible that masturbatory behavior could perforate the hymen but concluded it was "very unlikely" that "rubbing the vagina against a hard wooden object" would cause the hymen to tear.

Dr. Renfro's testimony is summarized in Part III of this opinion. Richard Vass testified that the defendant was alone in the house with the prosecutrix for a week while the girl's mother was in the hospital. On several occasions he heard the prosecutrix tell the defendant "not to touch her or to get out of the room." Once she said, "Daddy, don't touch me in my private place." During the time in question he also saw the prosecutrix rubbing her pelvic area on a china cabinet.

The defendant testified in his own behalf and denied the charges against him. He called Kathryn Sexton, his former wife and the mother of the prosecutrix, to testify. Mrs. Sexton stated that she disapproved of the "body games" played by the defendant with the prosecutrix and scolded the defendant for "overstimulating" the child. The defendant also called numerous character witnesses who testified to his good reputation for truthfulness.

I

First, the defendant argues that the State improperly bolstered the credibility of the prosecutrix when the female assistant district attorney sat in the witness chair with the child during her testimony. The State maintains that the prosecutor's conduct was designed merely to reassure a frightened child in order to enable her to testify.

While we agree with the State that "it is entirely reasonable and understandable that a five-year-old little girl would need someone there in a comforting or reassuring role," appellee's brief at 23, the prosecutor is not the appropriate person to assume that role. "It is, of course, never proper for the prosecuting attorney ... to state ... their personal belief in the guilt ... of the accused. To do so is to place before the jury for consideration the lawyer's own character and credibility, which is no part of any judicial proceeding." Adams v. State, 280 Ala. 678, 680, 198 So.2d 255, 257 (1967). See also Tarver v. State, 492 So.2d 328 (Ala.Cr.App.1986); Waldrop v. State, 424 So.2d 1345, 1346-48 (Ala.Cr.App.1982).

" 'Attempts to bolster a witness by vouching for his credibility are normally improper and error.' United States v. Ellis, 547 F.2d 863, 869 (5th Cir.1977). The test for improper vouching is whether the jury could reasonably believe that the prosecutor was indicating a personal belief in the witness' credibility. United States v. Roberts, 618 F.2d 530, 537 (9th Cir.1980) (citing Ellis, supra ). This test may be satisfied in two ways. First, the prosecution may place the prestige of the government behind the witness, by making explicit personal assurances of the witness' veracity. See United States v. Lamerson, 457 F.2d 371, 372 (5th Cir.1972); Gradsky v. United States, 373 F.2d 706, 709-10 (5th Cir.1967). Secondly, a prosecutor may implicitly vouch for the witness' veracity by indicating that information not presented to the jury supports the testimony. See United States v. Brooklier, 685 F.2d 1208, 1218 (9th Cir.1982) (explaining United States v. Roberts, 618 F.2d 530 (9th Cir.1980))." United States v. Sims, 719 F.2d 375, 377 (11th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1304, 79 L.Ed.2d 703 (1984).

Because of the possibility that a jury might interpret the prosecutor's action as indicating a personal belief in the credibility of the witness or the guilt of the accused, it is generally improper for the prosecutor to sit with a witness during her testimony. If, because of age, timidity, or frailty, a witness requires aid in order to testify, that aid should be rendered by someone other than the prosecuting attorney.

Although we do not condone the action of the State's attorney here and we caution prosecutors to refrain from similar actions in the future, we do not find that the trial court's overruling of the defendant's objection to this practice constituted reversible error under the circumstances of this particular case. There is an indication that the five-year-old witness was reluctant to testify at trial. The objection was only general: "I would like to impose an objection to Miss Brooks [the assistant district attorney] sitting with the witness on the witness stand." The trial judge was in the best position to determine what, if any, probable effect this action would have on the jury. "The trial court is vested with discretion in the conduct of a trial and appellate courts will not interfere therewith unless it clearly appears that there has been an abuse of discretion." Townsell v. State, 255 Ala. 495, 498, 52 So.2d 186, 189 (1951).

"Obviously, the examination of witnesses, on all trials, is for the purpose of eliciting the truth. They are sworn to speak the truth, the whole truth, and nothing but the truth. In attaining this end, a very large discretion must be allowed the presiding judge; and this the more particularly, where the witness is a mere child, and a female, under circumstances which are unaccustomed and greatly embarrassing to her. In such a case, if the age of the witness does not exceed eight years, this discretion will not be reviewed, unless there are fair reasons to believe that the witness, by such an examination, has been led into error." Wade v. State, 50 Ala. 164, 166 (1874) (citations to authority omitted).

II

After the defendant's conviction, defense counsel learned that the prosecutrix had been "fearful" and "reluctant" to testify, and had been promised a "surprise" by a Department of Human Resources social worker if she would "be brave" and "tell the truth" in the courtroom. Following her testimony, the child ran up to the social worker in the hall outside the courtroom and asked for her "surprise." The prosecutrix was then given a small "Cabbage Patch"-type doll.

On appeal, the defendant contends that the State's failure to disclose the offer and the receipt of the "surprise" in return for the prosecutrix's testimony deprived him of his right to exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In order to establish a Brady violation, the defendant must prove: "(1) The prosecution's suppression of evidence; (2) the favorable character of the suppressed evidence for the defense; (3) the materiality of the suppressed evidence." Monroe v. Blackburn, 607 F.2d 148, 150 (5th Cir.1979). See Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972); Killough v. State, 438 So.2d 311, 316 (Ala.Cr.App.1982), rev'd on other grounds, Ex parte Killough, 438 So.2d 333 (Ala.1983).

We assume, without deciding, that the first of the Brady requirements is met here. Although the record does not indicate whether the District Attorney's office had knowledge of the "surprise," the social worker who actually provided the doll, and Dr. Renfro, the clinical psychologist who testified as a State's witness, were aware of the "reward" and did not inform the defense. Cf. Pina v. Henderson, 752 F.2d 47, 49 (2d Cir.1985) (government agents who work in conjunction with police or prosecutor may be deemed an arm of the State for purposes of imputing their knowledge of exculpatory material to the prosecutor); State v. Gammill, 2 Kan.App.2d 627, 585 P.2d 1074, 1080 (1978) (knowledge of deputy sheriff imputed to the prosecution).

We also assume, without deciding, that the second requisite of Brady is satisfied. In United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the Supreme Court held that "impeachment evidence ... as well as exculpatory evidence, falls within the Brady rule" of required disclosure. Bagley, 473 U.S. at 676, 105 S.Ct. at 3380. See also Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

However, the third requirement, materiality, is lacking. "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the...