Terry v. State, 7 Div. 931

• Citation: 424 So.2d 652
• Decision Date: 12 October 1982
• Docket Number: 7 Div. 931
• Parties: Arthur Cleveland TERRY, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 652

424 So.2d 652

Arthur Cleveland TERRY, Jr. v. STATE.

7 Div. 931.

Court of Criminal Appeals of Alabama.

Oct. 12, 1982.

Rehearing Denied Nov. 23, 1982.

Certiorari Denied Jan. 21, 1983

Alabama Supreme Court 82-215.

Thomas M. Semmes, Oxford, for appellant.

Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appellee.

DeCARLO, Judge.

Rape; twelve years.

The prosecutrix testified that in April of 1981, she lived with her two small children in an apartment complex in Oxford, Alabama. Around 4:00 or 4:30 A.M. on April 30, 1981, she was awakened by a noise which she thought came from the complex. When she heard the noise again, she turned over and saw a man standing in front of her bed. She screamed and the man put a knife to her throat and threatened to kill her if she was not quiet.

Although there was no light on in the bedroom, there was a street lamp at the corner of the prosecutrix' building which shone into the bedroom. The prosecutrix was able to identify the man in her room as the appellant. She testified that she did not know appellant personally, but that he was the brother of her next-door neighbor. She had seen appellant several times, but had only spoken to him on one previous occasion. The prosecutrix stated that on the day before this occurrence, appellant's sister and brother-in-law had moved out of the apartment next door.

The appellant instructed the prosecutrix to take off her underwear. He then pulled down his jeans and raped her. The prosecutrix stated that the attack lasted at least an hour. Appellant attempted anal intercourse several times, but was unsuccessful and each time returned to normal sexual intercourse. During most of the attack, appellant held the knife to the prosecutrix' throat or ribs. The prosecutrix testified that appellant was unable to ejaculate and finally left her apartment.

After appellant left, the prosecutrix called a neighbor, Faye Moore. Ms. Moore came to the prosecutrix' apartment and called the complex security officer. Before the security officer arrived, the prosecutrix went back to her bedroom to change clothes. At that time she found a wallet in her bed containing appellant's drivers' license.

Lt. Bobby Parker of the Anniston Police Department testified that in April, 1981, he was working a second job as the security officer at the apartment complex where the prosecutrix lived. Parker stated that early on the morning of April 30, 1981, he was called to the prosecutrix' apartment by Faye Moore. The prosecutrix told him she had been raped and he called Sgt. Wood of the Oxford Police Department. He also took custody of the wallet found by the prosecutrix and later turned it over to Sgt. Wood. He stated that the prosecutrix was "very emotionally upset."

Sgt. Donald Wood testified that the prosecutrix was hysterical when he arrived in response to Parker's call. After the prosecutrix calmed down, Wood took her to the emergency room of a local hospital for an examination. Before leaving for the hospital, Wood had the prosecutrix collect the underwear she had had on. He later returned to the prosecutrix' apartment and collected the T-shirt she was wearing at the time of the attack and the sheets and pillow cases from the bed. These items, along with the evidence obtained during the medical examination of the prosecutrix, were later delivered to the crime lab.

Sgt. Wood had appellant brought in for questioning later on the day of the attack. He obtained a pubic combing and known pubic and head hairs from appellant. After advising appellant of his rights, Sgt. Wood questioned him about the attack on the prosecutrix. Appellant first denied seeing the prosecutrix that morning or being at her apartment. He then gave a statement to Sgt. Wood that he had paid the prosecutrix twenty-five dollars for sex the night before.

According to appellant's statement, he left his parents' house at 8:00 or 8:30 on the night of April 29th, and went to his sister's and brother-in-law's residence. He left their home around 10:00, went to a convenience store and purchased beer, and then went to the prosecutrix' apartment at her invitation. He stated that he had sex with the prosecutrix and left her apartment at approximately 12:30. He then went to Briggs' (a bar), where he stayed until closing time, around 3:30 A.M. After leaving Briggs', appellant returned to his parents' home. He woke them up coming in and talked to them a few minutes before going to bed.

When questioned about his wallet, appellant stated that he lost it while helping his sister and brother-in-law move on Tuesday. The attack on the prosecutrix occurred on Thursday morning.

Dr. Howard McVeigh examined the prosecutrix on the morning of April 30, 1981. He performed a flourescent light test for the presence of semen, which was negative, and took vaginal and rectal smears. A nurse performed a pubic combing and obtained known pubic hairs from the prosecutrix. Dr. McVeigh testified that the prosecutrix' physical condition was not consistent with normal non-forced sexual intercourse.

John Case, a criminalist with the Alabama Department of Forensic Sciences, testified that he found evidence of semen in the vaginal smears taken from the prosecutrix and on the top sheet taken from the prosecutrix' bed. The pubic combings taken from appellant revealed two pubic hairs dissimilar to appellant's, but consistent with known pubic hairs of the prosecutrix. Pubic hairs taken from the T-shirt worn by the victim on the night of the attack and from the bed sheets were consistent with known pubic hairs of appellant.

Appellant did not testify, but did call three witnesses, his brother, his brother-in-law, and one Tammy Putt, who testified that appellant had lost his wallet on Wednesday, the day before the attack on the prosecutrix, while helping his sister and brother-in-law move. Appellant's brother, Mark Terry, also testified that he was with appellant at Briggs' on the night of April 29th, from 11:00 or 12:00 until approximately 3:30 A.M. Terry further testified that appellant told him that he (appellant) had been to the prosecutrix' apartment at her invitation prior to coming to Briggs'.

Faye Moore testified that she received a call from the prosecutrix around 5:30 on the morning of April 30, 1981. When Ms. Moore arrived at the prosecutrix' apartment, the prosecutrix told her that she had been raped. Ms. Moore stated that she asked the prosecutrix if she knew who her attacker was and the prosecutrix replied that she did not, but that he lived in the apartment complex. When the prosecutrix found the wallet, Ms. Moore looked at appellant's picture on the driver's license and asked the prosecutrix if she knew who that was. According to Ms. Moore, the prosecutrix stated that she did not know who the person in the picture was and asked Ms. Moore who he was. Ms. Moore told the prosecutrix that he was the brother of the woman who had lived next door to her (the prosecutrix) until the day before.

The State called two witnesses in rebuttal. Appellant's father testified that appellant was at home when he woke up at 5:00 A.M. on April 30, 1981. He further stated that he did not know what time appellant returned home because he did not see appellant come in.

James Bryant testified that he had been a bartender at Briggs' on April 29, 1981. He stated that he first saw appellant that night around 10:30, but that it would not have been as late as 12:30. On cross-examination, he testified that appellant's drinks were placed on his brother's tab and that he did not see appellant's wallet that night.

I

Appellant asserts that the jury verdict was "not supported by the overwhelming weight of the evidence."

The State's evidence, as set out above, was sufficient to establish a prima facie case and the trial judge was correct in overruling appellant's motion to exclude. Appellant introduced evidence showing that he had lost his wallet before the day of the attack. There was also some evidence of an alibi.

Where, as in this case, there is conflicting evidence presented by the prosecution and the defense, it is for the jury to resolve the conflict and determine the defendant's guilt or innocence. Mayberry v. State, 281 Ala. 573, 206 So.2d 585 (1968); Ellis v. State, 244 Ala. 79, 11 So.2d 861 (1943); Gilmore v. State, 358 So.2d 501 (Ala.Cr.App.1978); Stewart v. State, 39 Ala.App. 410, 104 So.2d 684, cert. denied, 267 Ala. 697, 104 So.2d 686 (1958). In making its determination, the jury may believe or disbelieve all or any part of the testimony presented by either side. Smelcher v. State, 385 So.2d 653 (Ala.Cr.App.1980); Gilmore v. State, supra; Harris v. State, 333 So.2d 871 (Ala.Cr.App.1976). As the Court of Appeals stated in Autry v. State, 34 Ala.App. 225, 38 So.2d 348 (1948):

"The jury apparently saw fit to accept the testimony of the prosecutrix, and the other witnesses presented by the State. This conclusion was solely within the jury's province. Neither the trial court, nor this court on review, can usurp the province of the jury in weighing the evidence and passing upon the credibility of the witness.... This responsibility is solely upon the jury, the members of which have seen and heard the witnesses, and are in position to sift the truth from live testimony far better than a reviewing court can perform this function by reading such testimony in cold type in a record. Brooks v. State, 8 Ala.App. 277, 62 So. 569."

See also, Dolvin v. State, 391 So.2d 666 (Ala.Cr.App.1979), affirmed on other grounds, 391 So.2d 677 (Ala.1980); Hawkins v. State, 53 Ala.App. 89, 297 So.2d 813, cert. denied, 292 Ala. 723, 297 So.2d 817 (1974).

II

Appellant moved for a new trial on the ground that he failed to receive a fair and impartial trial due to the improprieties on the part of one of the jurors. A hearing was held on the motion. Appellant testified that he "knew of" a juror, Mary McWilliams. He stated that he had...