Turley v. State
| Citation | 356 So.2d 1238 |
| Decision Date | 07 March 1978 |
| Docket Number | 7 Div. 567 |
| Parties | Jimmy Ross TURLEY v. STATE. |
| Court | Alabama Court of Criminal Appeals |
J. L. Klinefelter, Burnham, Klinefelter, Halsey & Love, Anniston, for appellant.
William J. Baxley, Atty. Gen. and Susan Beth Farmer, Asst. Atty. Gen., for the State.
Appellant-defendant, an indigent here and below, was indicted in Cleburne County for rape, tried and convicted on a plea of not guilty. The jury fixed punishment at ten years imprisonment. Judgment was properly entered and this appeal followed.
It appears that the alleged offense occurred on July 10, 1973, about 10:30 or 11:00 A.M. This indictment was not the first indictment for the offense. The first indictment was fatally defective and demurrer thereto was sustained on April 8, 1974. We quote the bench notes:
" * * * Demurrer sustained to indictment as indictment returned as being in the Circuit Court of Calhoun, Ala., instead of the Circuit Court of Cleburne County, Ala. Case refered (sic) back to Grand Jury defendant bond set at 5,000.00."
This entry was pursuant to Title 15, § 258, Code of Alabama, Recompiled 1958. Rogers v. State, 126 Ala. 40, 28 So. 619, 620; Davis v. State, 145 Ala. 69, 40 So. 663.
We will first collate some of the evidence adduced at the trial.
The prosecutrix, age 17 at the time, testified that she first saw defendant on Saturday before July 10, 1973, which latter date was on Tuesday. This was when he came to a store where she was waiting on customers to help out a friend of hers. Defendant was in a car with one Jimmy Strickland whom she knew. She serviced the car with gasoline.
The next time she saw defendant was on Tuesday, July 10, 1973, following the Saturday when he was at the store. The second occasion was at her home during the absence of her husband. Defendant made inquiry about buying an old automobile which was stored in a shed disconnected from the house. She went with him to show him the car which he manifested an interest in buying. He was drinking beer at the time. As prosecutrix returned to the inside of her home, defendant followed her through the back door. He wanted their phone number so he could contact her husband about selling him the car. She went inside to get a pencil and paper. It was then that he followed her inside. They wound up in the living room.
She testified that he told her his name was Randy Robertson and that he lived at Glennaddie Apartments, 1-A. When she handed him a piece of paper, "he grabbed me and forced me down in a chair."
"Q. What happened then?
A. I didn't know I didn't know what was happening. I asked him to stop and he didn't stop, he kept on and I knew what was going to happen when he forced himself on me. So I started to trying to get away from him and fighting the best I could and so I told him, I said 'Please, just stop just for a minute.' And I started to I had to go through a hall and the front door was To get to the other room and I thought if I could just get in the hall and to the door and I would be able to get out. And so we started back there and I started out the door and he grabbed my hair and he started to forcing me into the other room.
Q. Now, you say into the other room. What room was that?
A. Bedroom.
Q. All right. What happened then?
A. We went in there and he pulled me down and he started to forcing himself on me. Started to choking me and he pulled my hair and hit me.
Q. Now, let me ask you this. You first said that when you tried to run out the front door that he grabbed you by the hair and then after he forced you into the bedroom he still had you by the hair. Did he in fact pull any of your hair out?
A. Yes, sir.
Q. All right. Did he choke you?
A. Yes, sir.
Q. All right. Was he doing anything else?
A. Yes, sir. He told me to pull my panties down and pull my top up and he got on me and held me down and he was choking me.
Q. Now, let me ask you this, Mrs. Prater. You said that the defendant told you to pull your pants down and your top up. Did you in fact do that?
A. Yes, sir. He kept I kept trying to get up, trying to get out but it didn't help done (sic), I couldn't get up. He kept forcing me down and choking me, pulling my hair and then he got on me like I said and he slid up on me, way up, toward my face with the lower part of his body and he He forced his private part in Into my mouth.
Q. Now, had he taken off any part of his clothing at that point?
A. His pants.
Q. And you said he forced his private part into your mouth?
A. Yes, sir.
Q. What happened then?
A. Then he slid back down and he kept He told me He had asked me what time my husband was suppose to get home and I told him he was just gone for a few minutes and that he would be back, and after this After he asked me this When he asked me this, this was in the other room and he asked me again and said, 'Now, what time is your husband coming home?' And I told him 3:30 and he said 'Well if he comes home early, I will just have to take care of him.' And so he slid back down on me and he forced his private part into mine."
The State adduced other evidence which supported the prosecutrix's testimony that she was forced by fear and violence to have sexual relations with defendant. We refer to evidence about scratches on her body, complaints and efforts to get help immediately following the episode.
Defendant took the stand and categorically denied that he committed any act of violence on the person of prosecutrix or put her in fear to induce the sexual intercourse. He contended that he had an artificial hip that was a physical handicap. He admitted going to prosecutrix's home on Tuesday, July 10, 1973. He admitted seeing prosecutrix at the gas station when, he claims, she came out to the car and kissed Jimmy Strickland.
Defendant admitted that he went to the home of prosecutrix to see an old car; that she went to a barn with him at which time he was drinking beer.
From the barn prosecutrix went back into the house where he was supposed to give her an address. They went into the living room where they engaged in some osculation.
We quote from Tr. p. 115:
"Q. Did her behavior create in your mind the belief that she had consented and was willing to participate in these acts?
A. Yes, she said she liked it and she was ready.
Q. She did say that?
A. Yeah."
We will now address the issues involved in this appeal.
Appellant's first contention is that he was entitled, for impeachment purposes and to obtain a fair trial, to inspect certain documents and statements made as a result of an investigation by the State of Alabama some four or five years prior to the trial.
It appears from the record that none of the statements were in the possession of the district attorney or his deputy district attorney. The trial court did not immediately deny the motion to produce, but made serious efforts to get these statements from the files of the Department of Public Safety in Montgomery, Alabama, where the The hearing, in camera, fails to produce facts to reveal what the missing statements contained. There is no showing that "any statement made by a witness (the prosecutrix or other witnesses) to officers before trial differed in any respect from statements made to the jury during trial." Also, there is no showing that "the statement requested, if any, was of such nature that without it the defendant's trial would be fundamentally unfair." Fortenberry v. State, 55 Ala.App. 1, 312 So.2d 573; Cooks v. State, 50 Ala.App. 49, 276 So.2d 634.
state investigator had sent them for safekeeping.
It is to be noted that the in camera hearing on the motion took place after the jury had been impaneled and the case was ready for trial. The court instructed the state investigator, who took the statements, to contact proper officials in Montgomery and get the statements sent to the court. The trial then continued on the merits. The statements did not reach the courthouse. The court denied defendant's motion to continue the case made during the progress of the trial when the statements did not arrive.
It occurs to us that the contents of the statements were highly speculative and for aught appearing, would not have contradicted what the witnesses testified. We will not put the court in error for refusing to continue the case.
Appellant-defendant contends that the trial court erred in declining to dismiss the prosecution because he was denied a speedy trial to which he had a constitutional right.
It appears in the record that the first indictment for the offense was on October 12, 1973, to which demurrer was sustained on April 8, 1974. Defendant was reindicted on January 27, 1975.
The record shows that on October 30, 1973, the case was continued until October 31, 1973. On November 19, 1973, the case was again continued and alias capias ordered; bond was raised to $6,000.00. On April 8, 1974, demurrer was sustained to indictment and defendant held for new indictment as we have already noted. Defendant's bond was reduced to $5,000.00. See Title 15, § 258, Recompiled Code 1958, which authorizes this procedure. We again note that the second indictment was returned on January 27, 1975.
After the demurrer was sustained there was not another grand jury in Cleburne County until August 6, 1974. We find that only one grand jury convened in Cleburne County between the adjudication on the demurrer and the date of the second indictment.
The record is not clear as to why an indictment was not returned in August, 1974; but, only five months elapsed before the indictment was returned. It is not shown that the State was at fault in not presenting the case to the grand jury until January, 1975, nor does it appear that this delay caused defendant any injury.
A supplemental record (bench notes of the trial court) shows that on February 11, 1975, (after the second indictment) the court ordered a conditional bond forfeiture and alias...
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