453 So. 2d 1078 | Ala. Crim. App. | 1984
William Jerome Franks, the appellant, was charged with first degree burglary in one indictment and with first degree sodomy and first degree rape in a second indictment. The indictments were consolidated for trial, and he was found guilty of all charges. Under each indictment, he was sentenced as a habitual offender and given life without parole. Two issues are raised on appeal.
The day of the crime, the victim gave a typewritten and signed statement to Montgomery Police Officer R.S. Grimsley. On direct examination, the prosecutrix neither used nor made any reference to that statement. On cross examination, defense counsel determined that she had given a written statement and requested a copy "for purposes of cross examination." *1080
Pursuant to the procedure outlined in Pate v. State,
Under Pate, where a prosecution witness has given a statement prior to trial and has testified on direct examination in the trial of a case, the accused, "upon laying a proper predicate, is entitled to have the Court, at least, conduct an in camera inspection" and "determine initially (1) whether the statement made by the witness before trial differed in any respects from statements made to the jury during trial, and (2) whether the statement requested was of such a nature that without it the defendant's trial would be fundamentally unfair." Pate, 415 So.2d at 1144.
On appeal, defense counsel admits that at trial he knew of these two particular remarks made by the prosecutrix in her statement due to his own "fortuitous" and "lucky" investigation. His knowledge of the victim's statement is obvious in his cross examination.
When questioned by defense counsel, the prosecutrix admitted that she told the police that her assailant "had a little-short braid of some kind on the side of his — * * * a braid or something on the side of his head like a little-piglet braid." In her statement, the prosecutrix never indicated that the braid was hanging down over his ear. She admitted that Franks had no braids in the photograph of the lineup.
With regard to the scars, on cross examination the prosecutrix testified that her assailant had "rough scaly hands as if something was there" and that he had "marks on his hands as if from old scars or from — I don't remember exactly how I worded it."
We find no error in the trial judge's refusal to allow defense counsel to inspect a copy of the statement of the prosecutrix for purposes of cross examination. Deep v. State,
Although Officer Grimsley testified at trial, on cross examination defense counsel made no inquiry into what the victim told the officer in her statement. We also note that the record does not show that defense counsel made any attempt to subpoena the individual from whom he learned that the victim had given a statement. In conclusion, we find no abuse of the trial judge's discretion in the denial of the request to examine the statement of the prosecutrix. *1081
On cross examination of the victim, defense counsel asked "that the defendant be allowed to approach the jury railing and demonstrate his arms." The trial judge denied that request atthat time: "I will not do that at this time, but I will allow you to do it at another time." The judge stated that he thought that allowing the victim to indicate the scars on Franks' hands was "outside the permissible perimeters of cross examination. But I will allow you (defense counsel) an opportunity to present me some authority that I could do that." Defense counsel pursued neither matter, and, although a defense was presented, did not make another request to allow Franks to display his hands to the jury. In this posture, Franks has no valid ground to complain.
The evidence against Franks was overwhelming. The prosecutrix was positive and unwavering in her identification of Franks as her assailant. Scientific examination and analysis of blood and saliva samples revealed that Franks could have committed the crimes. Before the assault, the victim's telephone cord and power had been cut off. Franks' fingerprint was found on the power box outside the house. The knife which the victim identified as the one Franks used during the assault was found in a chair in a neighbor's house where Franks had been sitting on the morning after the attack. So comprehensive is the State's evidence of guilt that a very convincing argument can be made that, even if Franks' arguments had merit and error were committed, that error was only harmless.
The judgment of the circuit court is affirmed.
AFFIRMED.
All Judges concur.