Thomas v. State

• Decision Date: 08 May 1973
• Docket Number: 1 Div. 237
• Citation: 50 Ala.App. 227,278 So.2d 230
• Parties: Joe C. THOMAS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 230

278 So.2d 230

50 Ala.App. 227

Joe C. THOMAS v. STATE.

1 Div. 237.

Court of Criminal Appeals of Alabama.

May 8, 1973.

David L. Barnett, Mobile, for appellant.

William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.

DOMINICK, Circuit Judge.

Defendant appeals from a conviction for rape with a sentence of twenty-five (25) years imprisonment.

I

The State's evidence is to the effect: That around 11 o'clock in the evening of October 10, 1970, the prosecutrix left her home on McKinney Street in Mobile, Alabama, in her automobile to pick up her mother-in-law at Scott Paper Company; she made a wrong turn on U.S. Highway 45 and her car stalled at the foot of a viaduct in Prichard, Alabama, so she started walking toward a Rebel gasoline station a couple of blocks away which was lighted, presumably to get to a telephone; as she proceeded toward that station she had to pass an unlighted Gulf Oil station. She noticed two autos of teen-agers racing around the pumps; she also noticed two black young men standing next to the pumps watching, and as she passed them the two started following her; she walked faster, and had passed the Gulf Oil station when they caught up with her and grabbed her, dragged her over by the side of a building and hedge, threw her down and though she struggled and screamed, they overpowered her, tore her clothes off and raped her. The larger (defendant here) raped her while the smaller (later identified as Bill Ferris) held his hand over her mouth and tried to hold her arm; the smaller then raped her, and defendant raped her again; a car with lights on passed and they threw her over in some bushes and ran back down the street; in a state of hysteria, she got up, pulled her clothes around her, and made her way to the Rebel service station; the attendant called the police and she reported to them what had happened and advised that the light was sufficient for her to see her assailants and that she could identify them.

Detective Chester Calisle of Prichard Police Department participated in, and presumably took charge of, the investigation; the police and the prosecutrix walked back down to the scene of the crime and she pointed out where she was raped; her underwear was found there; then she showed where she was first grabbed. There they found her wallet. She was taken to Prichard Police Headquarters and her mother-in-law and husband were called, who brought her some clothes, and she was then taken to Mobile General Hospital where she was given sedation. She was examined next day (Sunday) by Dr. Hogan.

The State's proof was that while defendant was raping her the second time, the younger (Bill Ferris) several times called defendant 'Joe' and urged him to 'let's go,' and appeared to be excited and frightened.

On the way to Police Headquarters Detective Carlisle and the prosecutrix stopped near the scene of the crime, where they saw several black men standing in a group, none of whom she recognized. However, Carlisle recognized one of them so he stopped, steped out of the car and talked to one black man about five minutes, then introduced the prosecutrix to him, but she didn't know what the detective had told this man.

On the next day she was in the back of Prichard Police Headquarters courtroom with her mother-in-law, and when two policemen were bringing five or six black men to the front, she pointed defendant out to her mother-in-law and told her 'that's the one,' though she had not seen him since the night of the rape and had not been shown a photograph of defendant. She had observed defendant closely over a period of some five minutes or more and she had no doubt about defendant being the one who raped her twice and was the aggressor. At the trial she again made an in-court identification of defendant, and was most positive.

Detective Chester Carlisle, after seeing the group of blacks while on his way to Police Headquarters with the prosecutrix, recognized one of them as being an informer who had given him information before on which he made arrests; he stopped and talked with this man telling him what had happened and that one of the two who raped the prosecutrix was called 'Joe'. From the information this informer gave him that night he went to Joe Thomas's house about 1:30 or 2:00 A.M. (Sunday morning) and arrested defendant and took him to Police Headquarters; at Police Headquarters he combed some debris from defendant's hair, composed of little bits of twigs, leaves and grass and put it in a paper envelope and marked it, then he took the dark pants which defendant wore, as well as the slacks which the prosecutrix was wearing and delivered all to Dr. Grubbs, State Toxicologist, along with some of the dirt from the scene where the rape occurred under the cedar bushes, for examination.

On the next day, Sunday, about 11:00 A.M. Detective Carlisle went to the home of a colored male, 15 year old Bill Ferris, and arrested him and took him to Police Headquarters.

At the trial which began on May 31, 1971 Dr. Nelson E. Grubbs testified that he examined and compared the dirt from scene of the rape and on knees of the trousers defendant wore, and it was microscopically and chemically the same--the plant material and debris taken from defendant's hair and the material taken from the scene were also similar; the plant material found on the prosecutrix's clothes was found to be similar to that in defendant's hair. The slacks which the prosecutrix had on were examined in crotch on right and left side and there were semen stains.

Dr. Walter Hogan, Special Medical Examiner for Mobile County, examined the prosecutrix next day (Sunday) at Mobile General Hospital and found semen in her vagina; there was no evidence of injury to the genitalia. He testified, 'It was my opinion that the lacerations and her general examination exhibited definite evidence of some traumatic experience.' She also had some scratches and bruises about her shoulders and other parts of her body.

Numerous witnesses, all members of defendant's family, testified on behalf of defendant and his whereabouts on the night in question, more particularly claiming that defendant was at their home all evening and up until the time he was arrested. The testimony is replete with conflicting statements. Their falsity or not were under settled principles for the petit jury to resolve.

Bill Ferris testified that he was 15 years old and was with defendant on the night in question; he and defendant left a teen-age shop and went down the street to where boys were racing cars at a Gulf Oil service station, and this girl (complaining witness) came up and asked where a phone booth was and they told her one was at the Rebel service station; they followed her and grabbed her, pulled her pants off, and defendant had sex with her, then witness had sex with her; they separated, and witness went to his home. Sunday morning the police came to his house and picked him up; he told police that Joe C. Thomas (defendant) was with him and exactly what had happened; since then he has been in the detention home under custody of juvenile authorities. On cross-examination witness admitted forcibly ravishing the prosecutrix and realized that it was serious offense, but he desired to tell the truth of his own accord, and the police didn't ask him to make the statement. He knew defendant had been picked up and jailed the night before, and after witness made the statement to the police he was locked up and put in the detention home. Witness was at preliminary hearing held following the rape on Saturday night.

Defendant testified in his own behalf and denied his guilt.

Detective Carlisle was cross-examined rather vigorously and in detail about his arrest of defendant without a warrant, but no objection was registered by or for defendant to his testimony or to the arrest and such search as was conducted, namely, the plant materials and debris and dirt from scene of crime, defendant's hair, defendant's trousers and prosecutrix's slacks and underwear, nor to Dr. Grubb's testimony. Defendant's attorney was present at preliminary hearing and the line-up, and no objection was made to any of this evidence at the trial or at the preliminary hearing.

During Assistant District Attorney Clay's closing argument the following occurred:

'Mr. Clay: Thank Goodness, she wasn't injured--not physically. But, of course, the fact that some seven or eight months has gone by and she is still under the care of a doctor for a nervous condition because of this traumatic experience.

'Mr. Coley: I don't recall any testimony of such nature. I don't remember such evidence and I object.

'The Court: Over-ruled.'

II

The first claim of error is that 'An in-court identification of a defendant in a criminal case which is sufficiently tainted by a suggestive preliminary hearing identification where the defendant was not represented by counsel is a denial of due process of law.'

We are cited to: United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Redmon v. State, 47 Ala.App. 421, 255 So.2d 604.

These cases are inapplicable in the present case. First, the attorney for defendant was evidently present at the preliminary hearing and at the line-up. Mr. Coley for defendant cross-examined the prosecutrix--(R. 25):

'Q. When you testified in preliminary hearing, do you remember . . . I don't remember your mentioning the name Joe. You think that you did?

'A. I believe I did. Yes.

'Q. You think that you did when I questioned you?

'A. Yes.

'Q. But your identification of this man when you see him right now is based entirely on those few minutes when you were grabbed, and in this light, taken and raped by the side of this building?

'A. Yes. And then I identified him, too, to my mother-in-law at the preliminary...