Trotter v. State

Decision Date23 March 1964
Docket Number5093,Nos. 5092,s. 5092
Citation377 S.W.2d 14,237 Ark. 820
PartiesOrion TROTTER, Appellant, v. STATE of Arkansas, Appellee. Albert HARRIS, Appellant, v. STATE of Arkansas, Appellee.
CourtArkansas Supreme Court

Thomas L. Cashion, Eudora, George Howard, Jr., Pine Bluff, for appellants.

Bruce Bennett, Atty. Gen., By Jack L. Lessenberry, Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

On the night of February 16, 1963, a young woman resident of Monticello, a school teacher, 23 years of age, and her escort, Jerry Wilson, whom she had dated for some two years, parked in a lonely area in Drew County. The couple, on the evening in question, had previously met at a basketball game, following which they went to two restaurants, and, after leaving other friends, about midnight, drove to a country road, known as the old college road, and sometimes called 'lovers' lane.' According to the testimony of the young woman, they talked and listened to the radio for about an hour and a half, when they suddenly heard a voice on the man's side, telling them to get out of the car. Wilson got out, and she moved to the other side, and shut and locked the door. Another man on that side of the automobile demanded that the door be opened. As she asked Wilson what to do, the first man struck her companion over the head with the butt of a pistol, and she started the car and attempted to drive off; however, in the hurry, she was unable to locate the light switch, and the car went into a ditch at the side of the road; also, shots were being fired at her, and she felt a burning sensation at the back of her head. The two men, Negroes, knocked the glass out on the right side of the car, turned off the motor and radio, and dragged the prosecuting witness to their car, placed her in the back seat, and drove off. The smaller of the Negroes got in the back seat with her, and criminally assaulted her, the larger one driving the automobile at the time. The car was then stopped, and the larger Negro raped her. Thereafter, each one raped her a second time, on all occasions threatening her life if she did not cease resistance. Following the second attack by the larger Negro, he again got into the driver's seat, the smaller one staying in the back with the victim, and after driving for a while, the car was stopped, and the larger man told her to take off all of her clothes. 1 Despite her pleadings, she was compelled to do so, and was then told to 'start walking.' After walking, completely naked, for some distance over a hard rock and gravel road, she finally came to a house occupied by a Negro couple, and screamed for help. The man and his wife permitted her to come in, and the husband told his wife to get some clothes to put on the victim, and they then took her to town. Within a few hours, appellants were arrested, and charged with the crime.

On February 25, counsel was appointed to represent the defendants, and thereafter, on motion of such counsel, appellants were committed to the State Hospital for observation. Subsequently, the Superintendent of the hospital submitted his report, finding that both appellants were 'without psychosis;' further, that appellants were not mentally ill to the degree of legal irresponsibility at the time of the examination, and that they were 'probably' 2 not mentally ill to the degree of legal irresponsibility at the time of the alleged commission of the offenses.

Thereafter, after the filing of several motions, which will be hereinafter discussed, the cases against appellants, by agreement of counsel for the state and the defendants, were consolidated for trial, and on April 9 the trial commenced, appellants pleading not guilty. The jury found both guilty of the crime of rape, as charged, and the court thereafter entered its judgment, sentencing each to death.

After the trial, Harris obtained separate counsel, and a motion for new trial was filed. A similar motion was filed on behalf of Trotter by the court-appointed attorney, who had represented the defendants during all proceedings. After a hearing, the court entered its order overruling both motions. Thereafter, the convictions were duly appealed to this court.

For reversal, appellant Harris relies upon four points, and appellant Trotter relies upon the same first three points. The alleged errors of the court are as follows:

'1. The Court abused its discretion in overruling appellant's motion for change of venue.

'2. The Court erred in overruling appellant's motion to quash the jury panel and further erred in not granting a new trial after the submission of additional evidence on the contention that racial discrimination existed in the selection of jurors in Drew County.

'3. The Court erred in permitting state witness to testify to alleged admissions made by appellant.

'4. The Court abused its discretion in appointing one counsel to represent both appellants.' 3

Before discussing these points relied upon by appellants, and argued in their briefs, we first discuss the proof offered at the trial as a matter of determining whether there was substantial evidence to support the verdict. As is customary, the first three assignments of error in the motion for new trial assert that the verdict of the jury was contrary to the evidence, contrary to the law, and contrary to the law and the evidence. In addition to the testimony of the prosecuting witness, heretofore related, the following evidence appears in the record.

Jerry Wilson, a senior student at Arkansas A. & M. College, and the companion of the prosecuting witness on the occasion of the acts in question, testified that, after leaving other friends, he and the young woman drove out to the old college road and parked, talking and listening to the radio; that shortly after 1:00 A.M. he heard a voice at the window, telling him to 'Get out of that car,' and he observed a Negro with a pistol standing at the window (later identified as Trotter). On opening the door to get out, the dome light of the car came on, and Wilson saw another Negro at the rear of the car that he subsequently identified as Harris; he gave Trotter his wallet and pocket change, and was ordered by that appellant to turn around. The witness testified that he was then hit in the back of the head, and knocked to the ground; that he heard a shot as the car suddenly drove away; that two other shots were fired, and he arose to his feet, and started toward the car which had gone into the ditch; that Harris grabbed him, but he managed to get free; that he broke away and ran to a house about a quarter of a mile back, and there telephoned the sheriff. Wilson had observed a 1953 or 1954 Plymouth with a light top and dark bottom parked a short distance back of where he had parked.

Sheriff Jack Towler of Drew County and other officers answered the call, but drove back into Monticello upon receiving information by radio that the young woman had been brought into town. Both the woman and Wilson were taken to the hospital; Wilson's head was dressed, and, after remaining at the hospital for about an hour, he left with the officers. They proceeded to the home of Trotter, and the witness noticed the car beside the house, and identified it as the one he had earlier seen on the road at the scene of the crime. After examining the automobile, Wilson went inside the house with the officers, and recognized Trotter as one of the attackers. Thereafter, around 8:00 o'clock in the morning. Wilson was taken to the jail to see Harris, who had in the meantime been arrested.

'We stood at the cell door. I saw this little Negro, which I know now as Harris, and he stood over by the bunk. I looked into the cell at him. I looked at this man and made the statement, 'do you remember me? Have you seen me before?' He looked right at me and remarked, 'yes I saw you last night.'' When asked, during the trial, if he was positive in his identification of the two men that had attacked him, Wilson replied, 'Yes Sir. I am absolutely positive. I have no feelings of doubt.'

Dr. Paul Allen Wallick, a physician of Monticello, testified that he received a call to go to the hospital about 4:00 A.M.; that after arriving, he examined the young woman and Wilson. As to the woman, he stated:

'She was on the examining table. She was draped with a sheet. Underneath the sheet she had on a rather faded loose fitting dress without any underclothes. There was blood over her face and in her hair and down her neck and shoulders. And some on the dress. There was blood down her legs and around her genital area--female area and up on the abdomen. She had a perforating wound of the scalp, again in the area of the back of the head. One entrance was approximately an inch and a half from the exit. I'll put it this way. The two openings were about an inch and a half apart.'

He stated that the head wound was caused by an object which 'penetrated one side and exited on the other side.' In describing his examination of her private parts, the doctor stated:

'There was a large amount of bright red blood in the public hair, down the thighs, down to and below the knees. There was bright red blood, which was still fresh, coming from the female opening. There was blood on the external portion of the female opening and also blood in the female canal--birth canal. She had a laceration or a tear of the hymeneal ring, which is commonly known as the virginal ring, which extended through the entire ring into the internal portion of the vaginal canal.'

He stated that she had been penetrated, and further, that he found large blisters on the ball and toes of each foot.

As to Wilson, the witness stated that he found a ragged lesion of the scalp in the parieto-occipital area (back of the head). The doctor stated that he washed the head area, shaved the hair from around the wound, applied a dressing, and gave the patient a shot of penicillin and tetanus toxoid.

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16 cases
  • Trotter v. Stephens
    • United States
    • U.S. District Court — Eastern District of Arkansas
    • 30 Abril 1965
    ...11, 1963, and sentenced to death. The convictions were affirmed by the Arkansas Supreme Court in the case of Trotter and Harris v. State, 237 Ark. 820, 377 S.W.2d 14 (1964), cert. denied 379 U.S. 890, 85 S.Ct. 163, 13 L.Ed.2d 94 (1964). By order of this Court executions were stayed and a he......
  • Maxwell v. Stephens
    • United States
    • U.S. District Court — Eastern District of Arkansas
    • 6 Mayo 1964
    ...Knight v. State, 171 Ark. 882, 286 S.W. 1013 (1926). Lane v. State, 217 Ark. 114, 229 S.W.2d 43 (1950). Trotter and Harris v. State, 237 Ark. 820, 377 S.W.2d 14 (1964). At the time of petitioner's arrest, the fact that a felony had been committed was clearly established. Miss Stella Spoon h......
  • Holloway v. State, CR
    • United States
    • Arkansas Supreme Court
    • 19 Julio 1976
    ...Next, let us review the point that separate counsel should have been appointed. The applicable law was discussed in Trotter and Harris v. State, 237 Ark. 820, 377 S.W.2d 14, cert. denied, 379 U.S. 890, 85 S.Ct. 163, 13 L.Ed.2d 94. In a lengthy discussion the court reviewed the relevant prec......
  • Harris v. Stephens
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 16 Junio 1966
    ...Arkansas for the crime of rape and sentenced to death. The convictions were affirmed by the Arkansas Supreme Court. Trotter v. State, 237 Ark. 820, 377 S.W.2d 14 (1964), and certiorari denied by the United States Supreme Court, Harris v. Arkansas, 379 U.S. 890, 85 S. Ct. 163, 13 L.Ed.2d 94 ......
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