Walker v. State, 6 Div. 81
| Decision Date | 01 November 1983 |
| Docket Number | 6 Div. 81 |
| Citation | 445 So.2d 955 |
| Parties | Willie Curt WALKER v. STATE. |
| Court | Alabama Court of Criminal Appeals |
John R. Hollingsworth of Hollingsworth & Clary, Fayette, for appellant.
Charles A. Graddick, Atty. Gen. and George Hardesty, Jr., Asst. Atty. Gen., for appellee.
Appellant was convicted of attempted first degree rape and sentenced to fifty years in the penitentiary. He now brings this appeal.
Appellant first argues that pre-trial photographic identifications made by the State's witnesses were tainted. In support of his contention, appellant asserts that the witnesses were initially shown only two black and white photographs. It should be pointed out, however, that despite appellant's assertions, the record is not clear as to the number of photographs displayed to the witnesses during the initial identification. Additionally, whether appellant's photograph was among those displayed was never established at trial. Finally, one of the State's two witnesses did not even make an identification at that time and the other was unsure of the identification she made. There is nothing in the record to indicate that the procedures used by the police were suggestive, and the mere fact that a small number of photographs were used during the photo spread will not in and of itself taint the results of that spread. Altman v. State, 399 So.2d 928 (Ala.Cr.App.1981).
The next issue is whether the State proved venue. Sufficient proof of venue was made through the testimony of witness Mary Rice who, upon examination by District Attorney Johnston, stated:
The incident in question occurred at the Fayette County Nursing Home. When the State offers evidence tending to show that the crime was committed within the jurisdiction of the court, the question becomes one for the jury. Willcutt v. State, 284 Ala. 547, 226 So.2d 328 (1969).
The next issue involves the sufficiency of the evidence offered to prove the offense charged in the indictment. The indictment reads in pertinent part that "Willie Curt Walker did with intent to commit the crime of Rape in the first degree ... attempt to engage in sexual intercourse with Cora Haley, a female, by forcible compulsion ...." Witness Sara Moore testified that she heard screams coming from one of the rooms in the nursing home and so proceeded to look for the source. She came to the room of Cora Haley, now deceased from natural causes, and saw a man on the bed with her. She further testified that Mrs. Haley's clothes were pulled up above her neck, a pillow was over her head, the door to the room was tightly shut when it should not have been, and the man's pants were unbuttoned. The evidence from this witness alone was certainly sufficient to prove a prima facie case.
Appellant next argues that his motion for a new trial was improperly denied because the evidence was not sufficient for the jury to find him guilty beyond a reasonable doubt and because there existed newly discovered evidence. In this case, the appellant used the defense of alibi and...
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