Streeter v. State
| Decision Date | 04 August 1981 |
| Docket Number | 3 Div. 247 |
| Citation | 406 So.2d 1024 |
| Parties | Foster Lee STREETER v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Stephen J. Ellmann, Montgomery, for appellant.
Charles A. Graddick, Atty. Gen., and Jacquelyn L. Lufkin, Asst. Atty. Gen., for appellee.
Rape; fifty years.
The facts in this case fully support the jury verdict. Appellant first confronted the prosecutrix at approximately 3:00 A.M. on July 14, 1979 as she was returning home and asked her for a cigarette or a match. "He was right up in my face." The prosecutrix stated that the area was lighted well enough to see by a traffic light and by a light at a filling station. A Montgomery Police Officer testified later that the area was also lighted by a street light. The prosecutrix testified that appellant was tall and was wearing a white suit. When she told him she did not have a match or cigarette, appellant told her, "Don't be smart" and slapped her. Appellant raped the prosecutrix in a church parking lot across the street from the filling station.
A friend of the appellant's next helped drag the prosecutrix to the back of the church where he, too, raped her. Appellant told his friend, "Don't hurt her ... I've been knowing (her) for a long time, her and her whole family." The prosecutrix then testified that "three more guys" came from the other side of the church and "did the same thing." When the police arrived with a canine unit the men ran, but one "guy had to come back the second time for Streeter." The prosecutrix made a positive in-court identification of appellant.
Ms. Augusta Ann Tutt testified that during the time in question she heard a woman screaming: "Please don't stab me; please don't kill me." She went to her upstairs bedroom window and saw two men beating the prosecutrix in the street. Ms. Tutt could not see their faces, but stated that the tallest man had on a light-colored suit. She testified that the prosecutrix "started hollering again once she got behind the church." Ms. Tutt called the police and later "saw the person in white get up and pull up his trousers."
Other State witnesses testified concerning the items of physical evidence that were collected at the crime scene. The state rested and appellant's motion to exclude was denied. Appellant presented no evidence.
Appellant alleges that the trial court erred to reversal in admitting testimony from the prosecutrix, during her direct examination, concerning her pretrial identification of him. Appellant relies on Luther v. State, 47 Ala.App. 647, 259 So.2d 857, cert. denied, 288 Ala. 745, 259 So.2d 862, cert. denied, 409 U.S. 877, 93 S.Ct. 129, 34 L.Ed.2d 131 (1972) for the proposition that proof of statements made by a witness out of court is inadmissible to corroborate his testimony at trial. The principle which appellant contends is controlling is succinctly stated in Carlisle v. State, 371 So.2d 975, 977 (Ala.Cr.App.1979) and cases cited therein: "A witness may not corroborate his in-court identification by evidence of an earlier identification of the accused."
Turning to the record, we note that the prosecutrix testified on direct examination without objection, that she talked with Detective Sidney Williams at police headquarters and that he "showed me ... he told me he wanted me to look through some books and see could I identify the guy." The prosecutrix stated, again without objection, that she looked through a book, selected a photograph and indicated to Detective Williams whom she had picked out.
Quoting from the record:
The prosecutrix then testified, without objection, that she talked with Detective Williams after selecting a photograph, that she showed the photograph that she had selected to Detective Williams and that no one had told her which photograph to select.
Again, from the record:
The prosecutrix next testified, without objection, that she later went back to police headquarters, talked to Detective Williams and viewed a lineup.
Again, quoting from the record:
Later, during direct examination, the prosecutrix testified, without objection, that she did not know whether a photograph was taken of the line-up she viewed, she only knew that she "picked out number four." The prosecutrix could not remember how all the men were dressed in the line-up.
The foregoing represents the prosecutrix's complete testimony on direct examination concerning any pretrial identification of appellant. The credibility of the prosecutrix's identification of appellant was forcefully attacked by defense counsel on cross-examination. On review of the prosecutrix's entire testimony, however, we are convinced that the errors alleged were not properly preserved for appeal.
Despite appellant's argument, the law in this area is clear. It is firmly established that this court may only consider matters contained in the record as it is filed on appeal. Lucy v. State, 340 So.2d 840 (Ala.Cr.App.1976). Review on appeal is limited to matters on which rulings are invoked at the trial court. Frazier v. State, 53 Ala.App. 492, 301 So.2d 256 (1974). Matters not objected to in the trial court cannot be considered for the first time on appeal, since review applies only to rulings invoked at trial. Scroggins v. State, 341 So.2d 967, 971 (Ala.Cr.App.1976), cert. denied, 341 So.2d 972 (Ala.1977). To be timely, an objection must come before the question is answered, or else a motion to exclude the unfavorable answer must be made. Hargrove v. State, 344 So.2d 823, 825 (Ala.Cr.App.), cert. denied, 344 So.2d 826 (Ala.1977); Miller v. State, 48 Ala.App. 28, 261 So.2d 447, cert. denied, 288 Ala. 746, 261 So.2d 451 (1972). Where an objection is made after the answer is given, and no ruling of the trial court is insisted upon, there is nothing to review. Morris v. State, 286 Ala. 60, 104 So.2d 810 (1958).
Where an accused receives a favorable ruling to his objection by the trial court, nothing is preserved for review because an adverse ruling is a preliminary requirement to preservation of error and appellate review; absent an adverse ruling the issue of the objection is not properly before this court. Van Antwerp v. State, 358 So.2d 782, 790 (Ala.Cr.App.), cert. denied, 358 So.2d 791 (Ala.1978). And a negative answer to an improper question does not constitute reversible error. Scroggins, supra. Thus, in applying the foregoing principles to the facts, nothing was preserved for our review.
Appellant complains that the trial court and his trial counsel interfered with his right to take the stand and testify in his own behalf.
From a fair reading of the record, both appellant's trial counsel and the trial court made it clear to appellant that he had a choice to testify or not to testify in his own behalf and that the decision was his and his alone. While appellant's trial counsel did advise appellant not to testify (it was explained to appellant that his prior felony convictions could be brought out to attack his credibility on cross-examination) it cannot be said that appellant was...
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...So.2d 987 (Ala.Cr.App.1982); Berry v. State, 408 So.2d 548 (Ala.Cr.App.1981), cert. denied, 408 So.2d 551 (Ala.1982); Streeter v. State, 406 So.2d 1024 (Ala.Cr.App.), cert. denied, 406 So.2d 1029 (Ala.1981); Hobbs v. State, 401 So.2d 276 Further, even if the trial court's ruling had been er......
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...the trial court will not be put in error for overruling the objection if there has been no motion to exclude the answer. Streeter v. State, 406 So.2d 1024 (Ala.Cr.App.), cert. denied, 406 So.2d 1029 (Ala.1981). VII Appellant maintains that the cumulative effect of several comments made by t......
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Shute v. State
...We therefore find that there was no objection and adverse ruling preserving the question for appellate review. Streeter v. State, 406 So.2d 1024 (Ala.Crim.App.1981), cert. denied, 406 So.2d 1029 (Ala.1981), cert. denied, 456 U.S. 932, 102 S.Ct. 1984, 72 L.Ed.2d 450 Appellant next asserts th......
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Irby v. State
...for review because an adverse ruling is a preliminary requirement to preservation of error and appellate review. Streeter v. State, 406 So.2d 1024 (Ala.Cr.App.), writ denied, 406 So.2d 1029 In view of the favorable ruling to appellant's objection, we have nothing before us on this issue for......