Leonard Williams v. State
Alabama Court of Criminal Appeals
335 So.2d 249
The prosecutrix was a thirteen-year-old daughter of thе appellant and lived with her mother. Leonard Williams, the appellant, did not live with the prosecutrix‘s mother, but with Lillie Mae Jones and her three daughters.
On Saturday, February 9, 1980, the appellant picked up the prosecutrix for the weekend and took her to the house where he lived with Lillie Mae Jones. On Sunday, February 10th about 7:00 P.M., appellant drove Lillie Mae Jones and her daughters to the “washateria” and then he drove the prosecutrix to Matthews’ store and then to the cemetery. On reaching the cemetery, the appellant drove down a dirt road to some trees. While there he removed the prosecutrix‘s clothes аnd had intercourse with her against her will.
The appellant later returned the prosecutrix to her mother‘s house, where she told her mother that her father had rаped her. Her mother took her to police headquarters to report the incident, and the prosecutrix was subsequently taken to the hospital. About 9:00 P.M., a pelvic examination was conducted which revealed numerous live sperm. It was the doctor‘s testimony that the presence of live sperm indicated that intercourse had occurred within two hours of the examination.
According to Lillie Mae Jones, it was approximately 7:00 P.M. when the appellant left to take the prosecutrix home. She testified that in approximately thirty minutes appellant returned to the laundromat where he had left them previously. She tеstified that they then went home and, after having gone to bed, were awakened by the police who arrested the appellant and took him to jail.
Leоnard Williams denied that he had raped the prosecutrix, but admitted that he had gone to the cemetery and down a dirt road with her in his car. He maintained, however, that he only drove on the dirt road in order to make it possible for a truck, which was following, to pass. Further, he stated that while he was in the cemetery he had lеctured his daughter about the evils of frequenting the “Mod Social Club” located in the Beulah Heights section of Baldwin County. It was appellant‘s testimony that, after he had “lectured” his daughter, he took her home, but she asked to go to “Miss Mary Goldsmith‘s house.” According to the appellant, he let his daughter out of the car about a block or two from her home, in front of the Goldsmith‘s house. Appellant then drove to the “Mod Social Club” and had two beers, and, on his return trip to the laundromat, he sаw his daughter walking towards the “Mod Social Club.” The appellant then stopped the car, grabbed his daughter, the prosecutrix, by the arm, placed her in the car, and drove her to her home.
At the end of the State‘s testimony, the appellant made a motion to exclude the State‘s evidence, and, at the cоmpletion of the trial before the case was submitted to the jury, he made a motion for a directed verdict. Both these motions were denied and the question of the sufficiency of the evidence is properly before this court. We have examined the record and find that the
I
The appellant alleges that because his three previous felony convictions of assault with intent to murdеr occurred prior to the enactment of the Alabama Habitual Felony Offender statute
A similar claim was rejected by the United States Supreme Court in Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683. There the Supreme Court stated:
“Nor do we think the fact that one of the convictions that entered into the calculatiоns by which petitioner became a fourth offender occurred before the Act was passed, makes the Act invalidly retroactive. . . . The sentence as a . . . habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.”
The United States Constitution and the Alabama Constitution prоhibit the passage of ex post facto laws.
Therefore, it is our judgment that the Alabama Habitual Felony Offender Act,
II
Appellant contends that
“(a) In all cases when it is shown that a criminal defendant has been previously convicted of any felony and after such conviction has committed anоther felony, he must be punished as follows.” (Emphasis added.)
Appellant insists that because the statute does not require the district attorney to apprise the court of a defendant‘s prior felony record, the Act is susceptible to selective enforcement and, therefore, constitutionally infirm.
Nothing in the record, however, indicates selective enforcement of the Act. Moreover, the mere showing of selective enforcement of a statute, without morе, is not constitutionally impermissible. In Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446, the Supreme Court of the United States observed:
“[T]he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiablе standard such as race, religion, or other arbitrary classification.”
Appellant has alleged only that the Alabama Habitual Felony Offender Act may be sеlectively enforced. He has not alleged either that it was selectively enforced in this case, or that there are grounds to support a finding of delibеrate discrimination. It is insufficient to show only that the law is enforced against some
We recognize that there are certain problems that occur in the applicatiоn of any recidivist statute, one being the possibility that the prosecutor may be unaware of an accused‘s prior felony record at the time of sentencing. In addition, there is the problem that a prior conviction may contain defects, such as the absence of counsel for an indigent defendant. This factor alone will render many prior felony convictions unusable. See Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319.
We also recognize that the argument of selective enforcement can be made in all cases where the prosecution has brought the criminal law to bear against an individual. Therefore, in the absence of any evidence tо support the appellant‘s assertion of possible selective enforcement of the statute, no constitutional violation is shown.
It is our judgment, after examination of the record and transcript of evidence, that the judgment of conviction by the Baldwin Circuit court is due to be affirmed.
AFFIRMED.
All the Judges con