Williams v. State
| Decision Date | 20 March 1984 |
| Docket Number | 2 Div. 389 |
| Citation | 448 So.2d 964 |
| Parties | Lee Morris WILLIAMS, alias v. STATE of Alabama. |
| Court | Alabama Court of Criminal Appeals |
J. Patrick Cheshire, Selma, for appellant.
Charles A. Graddick, Atty. Gen., and James E. Hasser, Jr., Asst. Atty. Gen., for appellee.
Lee Morris Williams, alias "Gas Tank" was charged with sexually molesting the prosecutrix, who was under the age of 12 years, contrary to § 13A-6-66, Code of Alabama 1975. The jury found the appellant "guilty of sexual abuse in the first degree as charged" and the trial court, after a sentencing hearing, fixed punishment at 10 years' imprisonment in the penitentiary.
Notice of appeal was given but an appeal was not perfected to this court. Thereafter, Williams filed a petition for writ of error coram nobis asserting, among other things, that he was not guilty and that his counsel had not adequately represented him by failing to "search for witnesses with knowledge of his character", failing to find "exculpatory evidence" and not conferring with him sufficiently with reference prospective witnesses. Williams also averred that he had desired to appeal his conviction and the trial court had failed to properly advise him with reference to this.
Following a hearing on the merits of Williams' allegations, and after the appointment of counsel to represent him, the trial court denied the petition with reference each allegation, except his right of appeal. The trial court then authorized a petition to be filed in this court and this court granted the appellant "an out of time appeal".
Before either the prosecutrix or her brother, both of whom were under the age of 12 years, testified, the able trial judge conducted a hearing on challenge of appellant's counsel as to their capacity to tell the truth and knowledge of what would happen to each if they failed to tell the truth. The court found both competent to testify in this case.
The appellant's brother, Frankie T. __________, described an event which occurred in September, 1980, when he and a younger sister, the prosecutrix, were taken to a park in Selma, Alabama, to play. The brother indicated he was sliding on the slide when he noticed the following: (R. 24-25).
This incident was also confirmed by the prosecutrix in her testimony and through Sergeant Billy Morgan of the Selma Police Department who told of going to the Department of Pensions and Securities in October, 1980, and receiving a report from a Mrs. Leslie Smith, a social worker, concerning a discharge of a young girl who had contracted venereal disease. The child was then contacted and a report received from her which was turned over to the authorities.
The State also subpoenaed the public health records of the appellant and the prosecutrix and it was determined that each had been treated for gonorrhea during the Fall of 1980.
The appellant's record had been placed in evidence through the Dallas County health officer. These records were objected to by counsel. The date of the tests were October 18, 1980, as being positive for gonorrhea.
The appellant took the stand to deny having fondled or assaulted the young prosecutrix but testified that the prosecutrix and her brother and sister had stayed with him and his wife on several occasions when their mother was gone or unavailable or their aunt was not available to look after them.
There was no exception to the oral charge of the court.
The appellant first asserts that the trial court erred in allowing the health records of the appellant and the prosecutrix from the Dallas County Health Department to be placed in evidence showing the results of the tests for gonorrhea. Defense counsel had properly objected and moved to exclude these at trial. His objection and motion were overruled and we are of the opinion that this was done correctly.
In Hill v. State, 366 So.2d 296 (Ala.Cr.App.1978), affirmed 366 So.2d 318 (Ala.1979), it was pointed out that there is no constitutional right to refuse to submit to a blood test, and the results of such test taken even against an accused's will are admissible at trial. See also, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) and South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). Clearly the use of evidence taken from bodily tests was here properly admitted at trial.
The appellant also contends that he was not properly permitted to cross-examine the public health officers concerning the reason for having these tests made, arguing that the prosecutrix's mother had motives or reasons for having such done to incriminate appellant.
It should be first noted that the prosecutrix's mother was not subpoenaed by either the prosecution or defense nor did she testify at trial. Thus, whatever her motives or reasons may have been is not properly before the trial court and would have been hearsay when testified by some other witness.
However, defense counsel had subpoenaed other relatives of the prosecutrix who were available to testify but not called upon to testify on this question. In Hill v. State, 366 So.2d 296 at 314, we find the following:
As hereinabove noted there was no proper predicate laid showing the unavailability of the prosecutrix's mother nor was a basis shown for having some other witness testify as to what may or may not have been her motives. Such, in all events, is of dubious relevancy because of the tender age of the victim, 8 years. Good medical practice would require that a victim be examined and treated following sexual encounter to prevent further damage or illness. This alone would be a proper basis for admitting the results of tests. Therefore, the trial court properly admitted the testimony from the public medical health records.
III(a)
Appellant asserted that his trial counsel was inadequate and did not properly represent him. The able trial judge found that the appellant was thoroughly and competently represented at this trial and...
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