Johnson v. State

365 So. 2d 123, 1978 Ala. Crim. App. LEXIS 1331
Court of Criminal Appeals of Alabama·Decided October 31, 1978·No. 6 Div. 108·Published·Cited by 7 cases

Opinion

HARRIS, Presiding Judge.

Appellant was convicted of rape and the jury fixed his punishment at ten years imprisonment in the penitentiary. The Court ordered the sentence be served at the expiration of a sentence appellant was serving in the State of Georgia.

Appellant did not testify in his behalf. He offered testimony in an attempt to discredit the testimony of the prosecutrix that she had been crying. The State produced a witness who testified that he saw the prose-cutrix the morning of the rape and she appeared to have been crying and was real nervous.

After sentence was imposed appellant gave notice of appeal. He was found to be indigent and was furnished a free transcript. New counsel was appointed to represent him on this appeal.

The prosecutrix testified that in April, 1974, she was twenty years old and that she lived at home with her mother and two sisters. On April 27, 1974, a Friday night, prosecutrix left home at approximately 11:35 p. m. and drove across Birmingham to visit a friend. While traveling down First Avenue North, prosecutrix saw a rust or red colored Mustang automobile, and at trial she identified appellant as the driver. The prosecutrix further testified that, when she stopped at a traffic light, she glanced over and saw appellant looking at her.

Prosecutrix’s destination was an apartment building on Tuscaloosa Avenue and Ensley Avenue. When she arrived there, prosecutrix saw appellant drive up behind her and park. From the record:

“Q. What is the next thing that happened, please, ma’am?
“A. I parked my car and got out. And at the same time he got out of his car. And I asked him what did he want. And he said that I looked at you and you looked at me. So, I thought maybe you wanted to go get a drink. And I said no. “And I took the door to knock on the door, and then he grabbed me.”

At that time appellant pulled the prose-cutrix around the side of the apartment building, telling her that, “If you make a sound I’ll split your throat.” The prosecu-trix testified that she then felt the cold steel of a knife on her throat. When appellant asked for a kiss and placed a hand between her legs, prosecutrix told him that it was no use because she was in her menstrual cycle. Appellant, holding the prose-cutrix by her arm, told her, “Well, we will find out,” and walked her to his car. Appellant told the prosecutrix to get in the [125]*125back seat of the Mustang and lie down. Appellant backed out of the parking lot and drove twenty to thirty minutes.

The prosecutrix testified that the appellant stopped in the yard of a house under construction in a neighborhood which she later discovered was in Hoover, in Jefferson County. Appellant told the prosecutrix, “Okay, you can get out now,” and they walked to the front of the car. Then appellant ordered the prosecutrix to disrobe and she stripped to her panties. Having been ordered to lean over the hood of the ear, the prosecutrix complied and the appellant struck her across the buttocks five or six times with his belt. Appellant told the prosecutrix, “That’s because you lied to me.” The prosecutrix explained that there was no evidence that she was in her menstrual cycle.

The prosecutrix testified that she and appellant then went to the utility room of the house; she did not see a knife at this point. Appellant brought in a large piece of cardboard and told the prosecutrix to sit down. Appellant then offered the prosecu-trix a cigarette, which she accepted, and they began to talk. When the prosecutrix told appellant she was cold, he went to the car and brought a coat for her. From the record:

“And we talked some more. And then he told me to lay back on the cardboard. And after I had taken the coat off he tried to have sex with me, but couldn’t, because I kept my legs straight.
“Q. What did he say at that time?
“A. He told me to get up. And he pulled me on top of him.
“Q. Now, did you have your panties on at this point?
“A. No, sir.
“Q. And what did you do, if anything?
“A. I was on top of him.
“Q. Okay. Did he penetrate you with his private parts?
“A. Yes, sir.
“Q. All right. What happened next?
“A. We got up and had another cigarette.
“Q. Do you recall whether or not he had a climax?
“A. Not then.
“Q. All right. After that act took place, what happened next, please, ma’am?
“A. We lit another cigarette. I asked him could I get dressed, and he said yes. He said, T believe it’s time to get you back.’ ”

When appellant and the prosecutrix got back in the car, it would not start, the headlights having been left on while they were at the house. The car rolled over a curb and the prosecutrix and appellant rocked the car off of the curb, sending it rolling down a hill where it hit a tree.

Appellant took the prosecutrix by the hand and told her they were going for help. Seeing a lighted house down the street, they walked over to it and knocked on the door. When a man answered the door, appellant told him that they had had car trouble and needed help. Appellant was told that help would be called.

The prosecutrix further testified that she did not tell the man that she had been raped. Appellant and the prosecutrix then sat down on the front steps of the house and waited. Instead of a wrecker pulling up, a police car arrived and appellant told the prosecutrix to “be quiet and not say a word.” When the prosecutrix asked the appellant if he still had the knife, he replied that he did. From the record:

“The police drove up and asked what was the trouble.
“Q. And then what took place?
“A. Do what?
“Q. Then what took place?
“A. We got in the car with the policemen and showed the policemen where the car was.
“Q. When you got in with the policemen did you get in the front seat or in the back seat?
“A. The front seat.
“Q. Okay. Did you tell the policemen that you had been raped?
“A. No, sir.
“Q. Okay. Go ahead.
[126]*126“THE COURT: Speak up a little louder. You said what?
“A. No, sir.
“Q. All right. Go ahead.
“A. We drove down to where the car was and got out. And he walked down to the Mustang with me to tell me to sit there. And then he walked back and talked with the policemen.
“And I suppose the police called the wrecker, because the wrecker came. And another police car then came. The first police car left. Then the second police car left.
“The wrecker came down to where the Mustang was. And the defendant knew the man that was driving the wrecker. They talked to each other.

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Johnson v. State, 365 So. 2d 123, 1978 Ala. Crim. App. LEXIS 1331 (Ala. Ct. App. 1978).

365 So. 2d 123 (Johnson v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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