Yelder v. State

• Decision Date: 11 October 1991
• Docket Number: 3 Div. 212
• Citation: 630 So.2d 92
• Parties: Timothy John YELDER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 92

630 So.2d 92

Timothy John YELDER v. STATE.

3 Div. 212.

Court of Criminal Appeals of Alabama.

Oct. 11, 1991.

Rehearing Denied Nov. 15, 1991.

Johnny Hardwick and Marvin Wiggins, Montgomery, for appellant.

James H. Evans, Atty. Gen., and Beth Hughes, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, Timothy John Yelder, was charged in separate indictments with three counts of rape, one count of sodomy, two counts of burglary in the second degree, and one count of burglary in the third degree. These charges were consolidated for trial, and the appellant was found guilty on all counts. The appellant was sentenced to life in prison on each count of rape, 40 years' imprisonment for the sodomy conviction, 20 years' imprisonment on each burglary in the second degree conviction, and 30 years' imprisonment on the conviction for burglary in the first degree.

The appellant was indicted in 1988 and was convicted in 1989. The appellant, in his brief, applies the new rules of criminal procedure in presenting his arguments. However, these new rules do not apply in his case. As stated in Rule 1.5, A.R.Crim.P.: "These rules shall govern all criminal proceedings commenced at or after 12:01 a.m., January 1, 1991." The commencement of criminal proceedings is defined in the committee comments as "the date of the accusatory instrument by which the case was initiated or 'commenced.' " Proceedings against the appellant were commenced prior to January 1, 1991. For purposes of the present appeal, the Alabama Rules of Criminal Procedure, Temporary govern the appellant's cause.

The state's evidence indicated that the first victim was raped on the night of March 19, 1988. She was in her home, around midnight, asleep in the living room, when she was awakened by the door to the room being kicked open. The individual who entered ran over to her, knocked her glasses off, and grabbed her from behind. The victim screamed and her attacker told her that if she continued to scream he would kill her. The victim tried to get away and ran towards the bedroom. Her attacker followed her, pushed her to the floor, applied a lubricant to her vaginal area, and raped her.

The next rape occurred around midnight on April 28, 1988. The second victim was at a friend's home by herself, asleep in the den, when she was awakened by something being placed over her face. The something was the bathrobe that she was wearing. Her attacker asked her what she was doing there and the victim told him that she was watching the house for a friend. The victim then told her assailant about items in the house which he could take if he would leave. The victim and her attacker walked towards the bedroom. Once in the bedroom, the intruder started pulling off the victim's pants. A struggle ensued, and the intruder sat on top of the victim and forced her to have oral sex with him and then raped her.

The next rape occurred on May 22, 1988. The third victim was at her father's house asleep in front of the television when she was awakened by something being placed over her face. The intruder had placed her bathrobe over her face. He told her not to make any noise and then proceeded to rape her.

None of the victims could identify the appellant from a line-up. Samples of semen collected from the three victims were tested using DNA matching. These tests connected the appellant to all three rapes.

I

First, the appellant argues that the trial court erred in allowing the consolidation of the seven counts so that they could be tried in one proceeding. The appellant was charged with three counts of rape, one count of sodomy, two counts of burglary in the second degree, and one count of burglary in the first degree. The appellant contends that these offenses should not have been consolidated for purposes of trial because, he argues, there is no indication that the assailant was the same individual. He further contends that he was prejudiced as a result of the consolidation.

Consolidation of separate indictments, so that the accused may be tried in one trial is specifically provided for in Rule 15.3, A.R.Crim.P.Temp. (now Rule 13.3, A.R.Crim.P.). This rule states:

"(b) Consolidation. If a defendant has been charged in separate indictments, informations, or complaints, the court, on its own initiative or on motion of either party, may, not later than seven days prior to trial, order that the charges be tried together if the offenses could have been joined in a single indictment, information, or complaint...."

"....

"(d) Severance Grounds. If the court finds that by a joinder of offenses in an indictment, information, or complaint, or by consolidation for trial, as provided in this rule, a defendant or the state may be prejudiced to the extent that a fair trial cannot be afforded, the court shall order an election or separate trials of counts or charges or provide whatever other relief justice may require...."

Consolidation of offenses is favored since it serves the important policy of:

" '... trial convenience and economy of judicial and prosecutorial resources--considerations of particular weight when the Government and the courts have been placed under strict mandate to expedite criminal trials.' Moreover, 'the defendant may prefer the disadvantages of joinder to the harassment, delay, trauma, and expense of multiple prosecutions.' Disposal of all of the charges in a single prosecution may facilitate concurrent sentencing, and will avoid the possibility of the convicted defendant later being disadvantaged by having a detainer filed against him for offenses not tried."

LaFave and Israel, 2 Criminal Procedure § 17.1(b) (1984). See also Langham v. State, 494 So.2d 910 (Ala.Cr.App.1986). There are opponents to the practice of consolidating offenses, see 74 Yale L.J. 553 (1965), and at least one state prohibits consolidation, see Gray v. State, 549 So.2d 1316 (Miss.1989).

In Alabama, joinder of offenses is permitted if the offenses 1) share the same or similar characteristics, or 2) involve the same conduct or connection in their commission, or 3) are part of a common scheme. See Rule 15.3(a), A.R.Crim.P.Temp. (now Rule 13.3(a), A.R.Crim.P.). See also Butler v. State, 439 So.2d 210 (Ala.Cr.App.1983). "Joinder, and thus consolidation, is appropriate where the crimes are of similar character, meaning nearly corresponding, resembling in many respects, or having a general likeness. United States v. Werner, 620 F.2d 922, 926 (2d Cir.1980)." Ex parte Hinton, 548 So.2d 562, 566 (Ala.1989), cert. denied, 493 U.S. 969, 110 S.Ct. 419, 107 L.Ed.2d 383 (1989). The question is whether the offenses are of a same or similar character so that a person evaluating the crimes would believe that the offenses were committed by the same person. See King v. State, 518 So.2d 880 (Ala.Cr.App.1987). Perhaps the most important consideration is the answer to the following question: If the offense were tried separately, would evidence of each offense be admissible in the trial for the other offense? See Nickerson v. State, 523 So.2d 504 (Ala.Cr.App.1987); King, supra.

In King two charges of rape and two charges of burglary were consolidated for trial. This court upheld the consolidation, stating:

"We base this holding upon our finding of the concurrence of the following common features: (1) The assaults occurred within the immediate vicinity of each other and of [the appellant's] residence, all within three minutes' walking distance; (2) they occurred in the late-night hours and six weeks apart; (3) the victims were black females, who lived with only a child and no spouse; (4) the assailant continuously attempted to strangle each woman and threatened to kill each; (5) he warned of inflicting harm to each victim with a weapon; (6) in each incident, light bulbs were unscrewed at the residence; (7) the assailant of both women wore high top tennis shoes; (8) each victim gave the same physical description of her attacker; and (9) each victim was repeatedly adamant that [the appellant] was her assailant."

King, 518 So.2d at 886.

In the instant cause, the offenses with which the appellant was charged shared similar characteristics. The instances all involved white females between the ages of 20 and 33. The offenses occurred within the same general area, within walking distance from each other, and within a nine-week period. Two occurred on the same street. In each instance the females were not married, and the assailant entered their houses from the rear. Each home had a privacy fence in the backyard where their assailants had gained entrance. Each offense occurred around midnight, and the assailant approached each victim from behind and tried to keep his victims from seeing his face by covering the victims' faces with articles of clothing that they were wearing. The victims all sustained minor injuries, and in each instance their attacker told them that he would kill them if they screamed. Each victim also stated that the male had a distinct voice and that he enunciated his words clearly. The victims each described their attacker as being slim, being between 5'7"' and 6'0"', and wearing jeans and white tennis shoes. None of the three victims heard a car leave after she was raped. In each instance it also appeared from the conversation with their assailant, that he had been watching them before he broke into their houses. The circuit court did not err in ruling that the offenses were correctly consolidated because they shared the "same or similar characteristics." Rule 15.3(a), A.R.Crim.P.Temp.

Furthermore, the appellant has failed to show that he was sufficiently prejudiced by the consolidation of the offenses. The Alabama Supreme Court in Ex parte Hinton, supra, upheld the consolidation of capital offenses, noting that the appellant had failed to show he suffered "compelling" prejudice. As the Court stated:

"It is only the most compelling prejudice that will be sufficient to show the...