596 So. 2d 426 | Ala. Crim. App. | 1991
John L. Corbitt was indicted for the offense of rape in the first degree in violation of §
To prevail on a claim of ineffective assistance of counsel, the defendant
Strickland v. Washington,"must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable."
With respect to Corbitt's first allegation of ineffective assistance, §
With respect to Corbitt's second allegation of ineffective assistance, when an accused has been charged with the first degree rape of his daughter, collateral sexual offenses allegedly committed by him against the daughter are admissible to establish his unnatural sexual passion for her. Bowden v.State,
In the case sub judice, Corbitt was charged with the first degree rape of his 11-year-old daughter, and the collateral sexual offenses allegedly committed by him against the same daughter were admissible under the Bowden exception to the exclusionary rule. Hence, trial counsel's failure to object to these alleged prior acts of sexual misconduct against the daughter does not constitute ineffective assistance.
With respect to the failure to object to testimony regarding Corbitt's alleged prior acts of sexual misconduct against another child, trial counsel chose not to object to this line of questioning in an attempt to discredit the testimony of the victim and her mother. It is apparent that Corbitt's trial counsel was trying to establish that Corbitt's wife had falsely accused Corbitt in the past of abuse of his stepdaughter and other children. Strategic decisions and trial tactics are clearly within the discretion of trial counsel underStrickland, supra, and trial counsel's failure to object to testimony concerning these alleged prior acts of sexual misconduct against another child does not constitute ineffective assistance of counsel.
With respect to Corbitt's third allegation of ineffective assistance, Corbitt was not entitled to a jury instruction concerning any lesser included offenses where there was no reasonable theory presented at trial to support a lesser offense. Kirksey v. State,
In the instant case, Corbitt denied that any sexual act between him and the victim had occurred. The victim testified that Corbitt had sexual intercourse with her before her twelfth birthday. Hence, under the evidence presented by the State, Corbitt was either guilty of first degree rape or guilty of no offense, and trial counsel's failure to request a jury instruction on any lesser included offenses does not constitute ineffective assistance.
Because Corbitt failed to show that his trial counsel's performance was deficient and that that deficient performance prejudiced his defense, he cannot prevail on his claim of ineffective assistance of counsel.
"In determining the sufficiency of the evidence to sustain the conviction, this court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution." Faircloth v. State,
To prove a case of rape in the first degree, the State must prove that Corbitt was 16 years of age or older and engaged in sexual intercourse with the victim who was less than 12 years of age. §
After examining the evidence and applying the proper standards of review, we find there was sufficient evidence presented by the State to allow the jury to conclude beyond a reasonable doubt that Corbitt was guilty of the crime as charged. In particular, the State presented the following evidence to prove that Corbitt was guilty of first degree rape:
The victim in this case testified that somewhere between Valentine's Day in February 1989 and her birthday, when she would have turned 12 years old, her father, John L. Corbitt, had sexual relations with her by putting his penis into her vagina. She stated that she screamed, but when she screamed, Corbitt told her to shut up. She further testified that she had a conversation with him on June 18, 1989, and he promised her that he would get help for his problems, that he would come home and live as a "family man", and that he would not "love" her in the manner that he had "loved" her in the past. On the basis of his representations, the victim signed a paper that she did not read, which recanted her statement that he had had sex with her. At trial, the victim testified that the recantation was not the truth. She then reiterated that Corbitt put his male organ inside her female organ without her consent and against her will, between February and her twelfth birthday in 1989.
Dr. S.D. Palmer testified as an expert that, after examining the pelvic area of the victim, he found that the hymen of the young victim was virtually nonexistent and that the introitus, or vaginal opening, readily admitted the index finger or small speculum. He concluded that the victim had a nonvirginal introitus consistent with her report of penile penetration.
From this evidence, it is clear that the State proved a prima facie case of rape in the first degree. The ages of the victim and the defendant were established, and through medical testimony, as well as through the testimony of the victim, the sexual intercourse was proven. Because the State established a prima facie case, any conflicts in the evidence present a jury question, which is not subject to review on appeal. Willis v.State, supra. Hence, the evidence presented was clearly sufficient to support the jury's determination of guilt.
The foregoing opinion was prepared by the Honorable JAMES H. FAULKNER, a former Alabama Supreme Court Justice, and his opinion is hereby adopted as that of the court.
The judgment of the circuit court is affirmed.
AFFIRMED.
All the Judges concur.