Williams v. State
| Decision Date | 15 November 1977 |
| Docket Number | 4 Div. 560 |
| Citation | 354 So.2d 48 |
| Parties | Michael Wayne WILLIAMS v. STATE. |
| Court | Alabama Court of Criminal Appeals |
J. Fletcher Jones, Andalusia, for appellant.
William J. Baxley, Atty. Gen. and Vanzetta Penn Durant, Asst. Atty. Gen. for the State.
The indictment charged that the appellant "against the order of nature, carnally knew Phillip T. Davis". After having been found guilty by a jury the trial court imposed a sentence of four years' imprisonment. The appellant is represented by court appointed counsel both at trial and on appeal.
We have considered the evidence in the light most favorable to the verdict as we are required. Scott v. State, 45 Ala.App. 149, 227 So.2d 436, cert. denied, 284 Ala. 733, 227 So.2d 438 (1969); Bass v. State, 55 Ala.App. 88, 313 So.2d 208 (1975). The facts in this case are sufficient to sustain a conviction for sodomy. In August of 1976, the appellant, Kenny Williams, 1 Earnest Bradley, Joey Thompson, and Phillip Davis were incarcerated in the Covington County Jail. Although the evidence presented by the state is confusing as to the degree of actual participation by the appellant in some of the events that occurred, it is clear that he was present in Davis' cell when Thompson, Williams and Bradley told Davis that they were going to have sex with him and threatened him. Davis' pants were removed and he was forced to take a shower by and in the presence of the appellant, Williams, Thompson and Bradley. There was testimony that Thompson had a steel pipe and a broom handle. The four men took Davis back to his cell where Williams had anal intercourse with Davis. Williams stopped after Davis began crying. Then each of the four men forced Davis to commit an act of oral sex. Davis testified that the appellant threatened "to call the rest of them back here and we will take care of you" if Davis did not do as told. Davis testified that the appellant forced Davis to perform oral sex. Ronald Madison, an inmate, also testified to this same fact and reported the incident the next day.
The defense attempted to impeach the credibility of eyewitness Madison by showing that he had given conflicting statements from his trial testimony. Although the appellant admitted that he had an idea of what was going on, he denied any specific knowledge of the assault upon Davis or any sexual contact with him. Additionally the defense attempted to prove that Davis was a homosexual who had actually and voluntarily solicited and engaged in sexual contact with inmates of the Covington County Jail.
After the jury venire was sworn and qualified defense counsel requested a continuance on the ground that he had just discovered a witness material to his defense but whom he could not locate.
Defense counsel stated to the trial judge that the witness, Wilbur Blocker, informed him that same morning that he had received a subpoena but that he "didn't see him (the appellant) do anything with anybody". Blocker told defense counsel that he was subpoenaed because he knew Phillip Davis, knew that Davis was "one of them" and knew that Davis had been writing love letters to different prisoners in the Covington County Jail. Counsel alleged that Blocker was "released" by the Sheriff immediately prior to trial because there was no subpoena for him. Defense counsel then had a subpoena issued for Blocker which was not served apparently because the witness could not be located. Upon this showing the trial judge denied the request for a continuance.
On appeal it is argued that the facts related to the court by defense counsel were "substantial and indispensable to the defense of the defendant and may very well have shown that the injured party was in actuality a willing participant to the crime or at least in mitigation of the offense by showing that Davis may have reasonably provoked the situation alleged to have occurred".
Consent of the victim is not a defense in a prosecution for sodomy. La Bryer v. State, 45 Ala.App. 33, 222 So.2d 361, cert. denied, 284 Ala. 732, 222 So.2d 366 (1969); Williams v. State, 57 Ala.App. 158, 326 So.2d 686, cert. denied, 295 Ala. 428, 326 So.2d 692 (1976); Stevens v. State, Ala.Cr.App., 333 So.2d 852, cert. denied, Ala., 333 So.2d 855 (1976); Annotation: 58 A.L.R.3d 636. Sodomy may be committed with the consent of both parties and without compulsion or force. People v. Blagg, 267 Cal.App. 598, 73 Cal.Rptr. 93, appeal after remand, 10 Cal.App.3d 1035, 89 Cal.Rptr. 446 (1970); People v. Poe, 109 Ill.App.2d 295, 248 N.E.2d 715 (1969). Where two persons voluntarily engage in an act of sodomy, both are guilty. Stevens, supra. Thus Blocker's testimony relating to the homosexuality of Davis is immaterial and not probative of the substantive crime charged since it would not prove performance or nonperformance of the criminal act. People v. Sellers, 103 Cal.App.2d 830, 230 P.2d 398 (1951).
Additionally Blocker's testimony would have been largely cumulative since three defense witnesses, including the appellant, testified that Davis had requested or attempted to perform homosexual acts upon them. Divine v. State, 279 Ala. 291, 184 So.2d 628 (1966).
A continuance because of an absent witness is properly refused where the testimony sought was not material, Hite v. State, 282 Ala. 497, 213 So.2d 229 (1968), or cumulative in substance. Divine, supra. Therefore the denial of the requested continuance was not error.
During the presentation of the state's case in chief, the District Attorney was permitted, over objection, to bring two individuals into the courtroom and have them identified by Davis, all in the presence of the jury. The two individuals were Thompson and Williams, two of the four individuals Davis testified forced him to commit fellatio. These two men were brought into the courtroom, displayed before the jury, and identified by Davis. They were not questioned and were escorted from the courtroom immediately after the identification was made.
Defense counsel objected to this presentation and display because, to allow it
(Emphasis added)
Defense counsel's objection reveals that Thompson and Williams were also charged with the same offense. In this regard the general rule is that
"the presence in the courtroom during trial of other persons under indictment for the same offense, but who are to be tried separately, is within the discretion of the court, and it may refuse such presence, or it may permit or require such a person to be present, such as for purposes of identification, . . ." 23 C.J.S. Criminal Law § 968, p. 876.
Subject to the discretion of the trial judge, it is within the prosecution's right to bring the co-conspirators of the accused into the courtroom for identification.
Commonwealth v. Lawrence, 282 Pa. 128, 131-132, 127 A. 465, 466 (1925).
Even had Thompson and Williams not been indicted for the same offense as the appellant, we think these same principles would be applicable.
While counsel for the appellant argues that the physical appearance of these two individuals, dressed in prison garb, prejudiced the appellant, the record is utterly silent on that ground of objection and gives no indication of how the men were dressed. Therefore it is not before this court for consideration. Lucy v. State, Ala.Cr.App., 340 So.2d 840, cert. denied, Ala., 340 So.2d 847 (1976). Specific grounds of objection waive all grounds not specified, and the trial court will not be put in error on grounds not specified. Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735, cert. denied, 295 Ala. 414, 327 So.2d 740 (1975).
The appellant also contends that the trial court erred by admitting into evidence certain "threats" made by the appellant and hearsay statements made by other inmates.
After the assault upon Davis, Madison notified the jailer of what had happened. He was then transferred to a different cell on the floor below the appellant. Madison testified that the appellant "hollered down" and told him that all he had to say "was that the boy was a queer and they would cut him loose"; that Thompson also "hollered down and threatened" him; that the threats were that "they would kill me and my family"...
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