Williams v. State, 8 Div. 867

• Decision Date: 04 October 1983
• Docket Number: 8 Div. 867
• Citation: 445 So.2d 949
• Parties: Gary Wade WILLIAMS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 949

445 So.2d 949

Gary Wade WILLIAMS v. STATE.

8 Div. 867.

Court of Criminal Appeals of Alabama.

Oct. 4, 1983.

Rehearing Denied Jan. 10, 1984.

Certiorari Denied Feb. 24, 1984

Alabama Supreme Court 83-428.

Fulton S. Hamilton, Huntsville, for appellant.

Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from two judgments of conviction and sentence based on two separate indictments, one for robbery in the first degree and the other for an attempt to commit the crime of rape, as defined in one respect by Alabama Criminal Code § 13A-6-61(a)(1) as follows:

"A male commits the crime of rape in the first degree if:

"He engaged in sexual intercourse with a female by forcible compulsion;

"...."

The alleged victim was the same person in the two offenses. According to the undisputed evidence, whatever happened as between defendant and the alleged victim occurred in the home of the victim, on the same day and within a few minutes of the same time.

Upon agreement between the State and defendant, with the approval of defendant's attorney, the two cases were consolidated for trial before a jury. After a sentence hearing conducted after the verdicts, the court sentenced the defendant to imprisonment for fifty years in the robbery case and to ten years in the attempted rape case. Thereafter, it being shown to the court that a new attorney had been appointed to represent defendant after the verdicts of the jury, another sentence hearing was conducted with a new attorney present, which resulted in the imposition of the same sentences as before. The same attorney representing defendant on the second sentence hearing represents him on appeal in both cases, which continue to be consolidated in this Court.

No issue is presented on appeal as to the sufficiency of the evidence to support the verdict of the jury as to the robbery case. One of the two issues presented on appeal challenges the sufficiency of the evidence to support the verdict of guilt of an attempt to rape. We will limit our narrative of the evidence to that part thereof pertaining to the attempted rape case. We note beforehand that defendant stoutly denied as a witness on the trial that he was ever with the alleged victim at any particular time, that he was ever in her home, and that he was ever guilty of any offense against her. There was no contention on the part of the defense that the alleged victim was not robbed as she stated in her testimony. As to her testimony as to what occurred in her home, the defendant's contention as to the factual issue presented was that her testimony charging the defendant was a case of mistaken identity by the victim of the robbery.

As is often true in prosecutions for rape or attempted rape, the only eyewitness testimony presented by the State is that of the victim herself, and as the defendant in the instant case denied his presence at the time, one must look exclusively to the testimony of Mrs. Sally Gerry to determine whether an attempt to rape occurred. According to her testimony, she lived at 706 Iris Lane on January 30, 1980, and she or her husband had previously run an advertisement in one of the daily papers advertising his or her automobile for sale. While she was alone in the house about noon on January 30, a man telephoned inquiring about the automobile. She discussed with him the "price" and "some of the features on the car and things." About 1:00 P.M. the man came to her home. She positively identified the man as Gary Wade Williams, the defendant, who knocked on the door and made known that he wanted to look at the car. Without then letting him in the house, she told him to look at the car, which he apparently did, and then returned to the door and stated he would like to drive the car. She replied that as soon as she put her baby down, which she then had in her arms, she would get in the automobile with him. She put her then sleeping baby in a swing and then, accompanied by her twenty-two-month-old child, rode around a short distance in the automobile. The man expressed considerable interest in the automobile, and when they returned to the house he said, "Well, I really like it. I think this is just what I am looking for." And then he said, "Can I use your phone?" Having indicated her permission, they went into the house. Her testimony continued as follows:

"... So he went in and he called. He went through the living room into the kitchen. Our telephone was down in the den. It was a remodeled garage. I stayed up in the living room and left the door open a little bit at first. Then he came back in and said that his friend was going to come by and pick him up."

According to Mrs. Gerry's further testimony, considerable time passed without anyone else coming to the house. The man made several efforts to call someone again; he dialed the telephone several times without any apparent success. After some time, he displayed a handgun and ordered her to put the two-year-old son in a room and "make sure he stays in his room." She "put the baby down real fast" and the "twenty-two-month-old in his room." When she returned from spanking the older child "to make sure he stayed in the room," the man said, "I want your money." After she offered him the contents of her purse, he replied that he knew that there was more money in the house. She testified:

"... I can't remember exactly how he put it. He said, 'There has to be something of worth in here.' And he said, 'Let's go back to the bedroom.' I said 'My husband has a jar of money in there and it's only change also.' I know he had taken it out before and we had about--everytime we had taken the money out we had about $40 or $50 in there. He said, 'Just go on back there.' At this time he had the gun out of his coat and he was pointing it toward me. We walked back into the bedroom and I showed him the can. He said, 'I don't want that.' Then he said, 'Take off your clothes.' I said, 'Please don't do this.' He said, 'Take off your clothes.' Then I started telling him, you know, that I had just had the baby and that I had just gotten out of the hospital just the week before and, you know, that I was hurting real bad and I just didn't want him to do anything. Then he took his arm and he pushed me on this arm. He pushed me on the bed. When I was on the bed he said, 'Take off your clothes.' I said, 'Please don't do this.' I told him that my husband would come home at anytime because he was a coach. He knew the car was for sale and he would come home at any time. Then I got up on the other side of the bed and he went back around. All this time he was still holding the gun on me. He said, 'Take off your clothes.' I said, 'Please, that money is probably--I have no idea how much it...