Tate v. State, 4 Div. 66

• Decision Date: 31 May 1983
• Docket Number: 4 Div. 66
• Parties: Larry Edwin TATE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 190

435 So.2d 190

Larry Edwin TATE v. STATE.

4 Div. 66.

Court of Criminal Appeals of Alabama.

May 31, 1983.

Rehearing Denied July 5, 1983.

John B. Crawley, Troy, and Don C. Dickert, Brundidge, for appellant.

Charles A. Graddick, Atty. Gen. and Jennifer M. Mullins, Asst. Atty. Gen., for appellee.

SAM W. TAYLOR, Judge.

First degree rape; sentence: life imprisonment without parole.

The prosecutrix left her place of employment in Elba, Alabama at 10:10 p.m. on the evening of January 28, 1981. She drove alone from Elba toward Troy, Alabama, where she was to meet her fiance at the Holiday Inn. At the intersection of Highways 87 and 167, she came upon a 1978 Ford Thunderbird automobile stopped in the median of the road. The driver of the Thunderbird was waiving a flashlight and the prosecutrix stopped because she thought the Thunderbird belonged to a friend who lived in Troy.

Only when the driver of the Thunderbird walked up next to her vehicle's door did she realize he was not who she had thought him to be. The stranger, later identified as the appellant, asked her where she was going and then asked for a ride to Troy. The prosecutrix hesitatingly agreed and the man climbed in over her to the front passenger seat.

As the prosecutrix proceeded toward Troy, the appellant placed an object against her throat and ordered her to stop her automobile. He told her that as long as she followed his orders he would not hurt her. Appellant took control of the wheel and drove them back to the Thunderbird. There, the prosecutrix was made to hold the flashlight while appellant removed the Thunderbird's license plate, wiped out the automobile interior, and removed a clothes basket and placed it in her automobile.

They reentered her vehicle and appellant drove towards Troy until they reached Highway 231, where appellant turned and proceeded toward Brundidge. Appellant drove to a remote area in Pike County, pulled off the road, and instructed the prosecutrix to remove her clothes. She began to scream and refused, at which time appellant threatened to hurt her if she did not cooperate.

The prosecutrix removed her clothes, believing that appellant would kill her if she refused. Appellant unscrewed the interior light of the automobile, walked around to the victim's side of the car, and asked her if she had ever been raped before. She replied no and appellant said "well, you're about to be." He then pushed her back into the seat and raped her.

Afterwards, appellant allowed her to dress. He drove to a trailer park on 231 and got out of the vehicle. The prosecutrix drove on to the Holiday Inn and called her sister. When her fiance arrived, he called the police and then took her to the hospital. The police sealed the prosecutrix's vehicle at the Holiday Inn and subsequently located the Thunderbird at the intersection described by the prosecutrix. It was also sealed and then impounded by the police.

The prosecutrix identified appellant at trial as the man who raped her. She also testified on voir dire that she had chosen his picture from a police photographic array.

The prosecutrix also identified a photograph taken of her in the early morning of January 29, 1981, which depicted a scratch on her throat made by the object which appellant used to threaten her.

Appellant does not question the sufficiency of the evidence. We will set forth only those further facts which are necessary to resolve the issues raised on appeal.

I

Appellant contends the trial court erred in allowing into evidence appellant's fingerprint, which was obtained from a beer can found under the front seat of the impounded 1978 Thunderbird automobile. The can was found during a search of the previously sealed vehicle by a State trace evidence analyst on January 29, 1981.

Appellant asserts the State failed to prove a sufficient chain of custody to show that the Thunderbird, and therefore its contents, were in substantially the same condition at the time the search was made as when law enforcement officers first took the automobile into custody. Because the only break alleged to have occurred was at the beginning of the chain of custody, we will not detail the entire chain of custody in this opinion. See Sexton v. State, 346 So.2d 1177 (Ala.Cr.App.), cert. denied, 346 So.2d 1180 (Ala.1977).

Robert Lewis, former Pike County Deputy Sheriff, testified he was called to the Holiday Inn parking lot in Troy, Alabama in that capacity in the early morning hours of January 29, 1981. There he processed the exterior of the prosecutrix's automobile for fingerprints and sealed the vehicle with evidence tape. From there he went to the intersection of Highways 87 and 167, where he located a 1978 Thunderbird which had been wrecked on the intersection's traffic island. Deputy Lewis also sealed this vehicle with evidence tape for processing later under better lighting conditions. After sealing the automobile, he had it towed from the scene.

On cross-examination, Deputy Lewis testified that when he first arrived at the scene where the Thunderbird had been wrecked, Trooper Bob Jones was standing there waiting for Deputy Lewis to arrive.

The State failed to call Trooper Jones to testify and therein, argues appellant, lies the impermissible break in the chain of custody of the automobile. Because Trooper Jones did not testify as to the condition of the vehicle from the time he arrived until the time Deputy Lewis arrived, appellant argues the State failed to prove that the vehicle and its contents were in substantially the same condition as at the time the chain began.

Appellant points especially to the testimony of Deputy Lewis that the Thunderbird doors were closed when he arrived at the scene. Testimony by the prosecutrix's fiance earlier in the trial indicated the doors of the Thunderbird had been open when he passed the Thunderbird earlier on the night of the rape. He testified that when his fiancee failed to arrive at the Holiday Inn at the appropriate time, he had driven from Troy toward Elba in search of her and had passed the Thunderbird en route.

Appellant argues this alleged hiatus in the chain left open the possibility that Trooper Jones picked up a beer can from along the road, threw it into the Thunderbird and then closed the vehicle's doors.

The testimony developed in the record indicates nothing about Trooper Jones's purpose in being at the scene of the wrecked Thunderbird. Neither does it reveal what action he took at the scene. Conversely, Deputy Lewis repeatedly testified that he was called into the case to secure the vehicle at the Holiday Inn. Upon learning of the second vehicle, he proceeded to its location and secured it also.

Trooper Jones's sole involvement, from aught that appears from the record, was simply to have been at the scene of the wreck in his role as a guardian of the State highways. Deputy Lewis did not testify as to any involvement of Trooper Jones in securing or handling the Thunderbird. The actions at the crime scene of Deputy Lewis constitute the only involvement of a law enforcer in the investigation shown in the record. We do not see this as a break in the chain of custody for the first investigating officer to arrive at the crime scene in order to secure potential evidence. See, Andrews v. State, 370 So.2d 1070 (Ala.Cr.App.), cert. denied, 370 So.2d 1075 (Ala.1979). Trooper Jones does not appear to have been involved in the custody of the vehicle at all, and appellant failed to develop any evidence otherwise at trial.

Even assuming arguendo that Trooper Jones was present in order to secure the automobile, we view his lack of testimony as a weak link in the chain which presented a question of credit and weight only, and not one of admissibility. Whitt v. State, 370 So.2d 730 (Ala.Cr.App.1978), reversed on other grounds, 370 So.2d 736 (Ala.1979). While all doubt could have been resolved by calling Trooper Jones, the evidence raised no discrepancy nor intimation that the evidence had been altered in any way by Trooper Jones. Whether or not the vehicle doors were closed or open was merely an evidentiary question for the jury to resolve. Waters v. State, 360 So.2d 358 (Ala.Cr.App.), cert. denied, 360 So.2d 367 (Ala.1978).

The purpose in establishing a chain of custody is to show a reasonable probability that the vehicle and its contents were not tampered with. Bell v. State, 339 So.2d 96 (Ala.Cr.App.1976). To warrant the reception in evidence of such an object or testimony concerning evidence gleaned from the object against an objection that a proper chain of custody has not been established, it is not necessary that it be proved to an absolute certainty, but only to a reasonable probability that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain. Sexton, supra. The State need not have negated the remotest possibility of alteration, substitution, or tampering with the evidence. Whetstone v. State, 407 So.2d 854 (Ala.Cr.App.1981).

There is no positive evidence that Trooper Jones altered the vehicle or its contents after he arrived on the scene. In order for appellant to support his contention of a potentially illegal alteration by Trooper Jones, he should have shown Jones had both a motive and an opportunity to tamper with the vehicle. Bell, supra. No motive was shown, and the time lapse before Deputy Lewis arrived is unknown. Deputy Lewis's testimony revealed no involvement by Trooper Jones whatsoever in handling the evidence.

While Trooper Jones's testimony would have alleviated this problem, we do not find that the trial court abused its discretion in admitting the fingerprint evidence. The evidence established a reasonable probability that the object was not tampered with.

II

During the sentencing hearing conducted pursuant to the Alabama Habitual Offender Act, the State introduced certified copies of minute entries of three prior convictions. Appe...