Taylor v. State
| Decision Date | 06 October 1981 |
| Docket Number | 6 Div. 463 |
| Citation | 408 So.2d 551 |
| Parties | Glen Irving TAYLOR v. STATE of Alabama. |
| Court | Alabama Court of Criminal Appeals |
Roger C. Appell, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., and Charles M. Allen, II, Asst. Atty. Gen., for appellee.
Glen Irving Taylor was indicted for the "carnal knowledge" of a six year old girl. He was tried by a jury which returned a verdict of "guilty as charged." Pursuant to this verdict and in light of "the nature of the crime involved in this case," the trial court sentenced appellant to "imprisonment in the penitentiary for life."
Appellant then filed a motion for a new trial which was denied.
The prosecutrix in this case, a six year old child, testified that on or about September 5, 1979, the appellant, who was living with the prosecutrix and her mother at the time, sexually molested her. She stated that she and the appellant were at home alone when he carried her into her mother's bedroom, put her on the bed, stripped her of her clothes, climbed on top of her and had sexual intercourse with her. Some time later the prosecutrix told her mother of the incident.
On September 10, 1979, the prosecutrix' mother and appellant had a heated argument allegedly over the appellant's sexual abuse of the prosecutrix five days before. Their argument created such a disturbance that the police were called to investigate.
As a result of their investigation, which included an interview with the prosecutrix about the alleged sexual abuse, the police arrested both the appellant and the prosecutrix' mother for "disturbing the peace" and took the prosecutrix into "protective custody."
The investigating officers testified that while they were investigating the "disturbance" at the prosecutrix' residence, appellant told them that if he had sexually assaulted the prosecutrix, he was drunk at the time.
Medical evidence adduced at trial indicated that the prosecutrix' vagina had indeed been enlarged and that such enlargement could have resulted from sexual intercourse with an adult male.
There was also evidence that the prosecutrix had been raped by her natural father (not the appellant) five or six months prior to this incident involving the appellant.
Furthermore, medical examinations of the prosecutrix and appellant revealed that the prosecutrix had gonorrhea, while the appellant apparently did not. The prosecution's medical expert explained that if the prosecutrix contracted gonorrhea during this alleged act of intercourse with the appellant, the appellant should have tested positive for gonorrhea. However, this expert witness further explained that it is not uncommon for a male to be a "carrier" of gonorrhea. In such a case, the "carrier" could test negative for gonorrhea and yet be able to transfer it to another party through intercourse. It was also pointed out that the appellant could have cured himself of the disease before he was tested and that the prosecutrix could have contracted the disease from another source. In any event the evidence regarding the "gonorrhea" issue was confusing, highly technical, and rather inconclusive.
The appellant's only defense was that the incident never occurred, that he had no physical contact with the prosecutrix whatsoever. In support of this position, he produced several character witnesses who vouched for his "good character."
Appellant's major contention on appeal is that the trial court erred when it failed to grant appellant a mistrial after the prosecution, during closing argument, introduced evidence that the prosecutrix' mother had gonorrhea. According to the appellant, this fact, which was not in evidence, was not only relevant to the question of appellant's guilt, but also highly prejudicial and ineradicable from the minds of the jury. We disagree.
The record (R. 263) sets out (out of context) the prosecution's statement contested by appellant here: "(t)estimony that her mother had gonorrhea." The appellant contends that this was a deliberate and calculated attempt on behalf of the prosecution to get a fact, not in evidence, before the jury. The state claims that this was an inadvertent slip on behalf of the prosecution.
In either event, the trial court immediately sustained appellant's objection to this statement, instructed the jury to disregard it and instructed the prosecutor to "refrain from going into the mother's aspect of this." (R. 263-264). This being the sum and substance of this improper argument, we feel that the statement was arguably not even prejudicial and that without question, any potential harm to the appellant was eliminated by the trial court's prompt actions. Simpson v. State, 354 So.2d 317 (Ala.Cr.App.1977), cert. denied, 354 So.2d 324 (Ala.1978); Flint v. State, 370 So.2d 332 (Ala.Cr.App.1979).
We are also reminded that the propriety of arguments of counsel is largely within the discretion of the trial court because the trial court is best able to assess the issues, parties, and circumstances of each case and determine the potential prejudicial impact of the improper argument on the jury. Garrett v. State, 268 Ala. 299, 105 So.2d 541 (1958); Madison v. State, 55 Ala.App. 634, 318 So.2d 329, cert. denied, 294 Ala. 764, 318 So.2d 337 (1975); Simpson v. State, supra.
Here, the trial court knew the jury had direct evidence from the prosecutrix, which, if believed, would fully support a conviction. The trial court was also aware of the confusing nature and highly technical aspects of the "gonorrhea" issue and knew the impact of this issue upon the jury during the trial. The trial court was, therefore, in the best position to judge the potential prejudice to this appellant and we will not disturb its decision in denying appellant's motion for a mistrial. Garrett, supra; Simpson, supra.
Appellant also asserts that it was error for the trial court to refuse appellant's written requested charge on the "lesser included offense" of "sexual abuse in the first degree," § 13-1-137, Code of Alabama 1975.
The law in Alabama in this regard is that the trial court may, within its discretion, refuse a charge which is not applicable to the evidence presented at trial even though said charge is arguably a correct statement of law. Weldon v. State, 50 Ala.App. 477, 280 So.2d 183, cert. denied, 291 Ala. 801, 280 So.2d 186 (1973); Boyd v. State, 350 So.2d 757 (Ala.Cr.App.1977).
During the trial of this case neither party contended that the crime committed was, arguably, "sexual abuse in the first degree" pursuant to § 13-1-137. The state's case was solely in support of the "carnal knowledge" charge without any assertions of an alternative offense. In defense, the appellant merely denied any contact whatsoever with the prosecutrix. He made no assertions and produced no evidence that would...
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