Wright v. StateWright v. State
The appellant, Stephen Carl Wright, was indicted in a two-count indictment. The first count alleged that he “did attempt to engage in sexual intercourse with [B.T.,] a female, by forcible compulsion, in violation of
A second indictment was returned by the same grand jury, charging that the appellant “did, unlawfully enter the lawfully occupied dwelling house of [B.M.] while said dwelling was being occupied by [B.M.,] with the intent to commit a theft or a felony therein, to-wit: rape, in violation of
The cases were consolidated for trial and, in case No. CC-86-358, the appellant was found guilty of attempted rape and assault in the second degree. He was sentenced to ten years’ imprisonment on each conviction with the sentences to run concurrently. In case No. CC-86-359, he was found guilty of burglary in the second degree and attempted rape. He was sentenced to ten years’ imprisonment on each charge, with the sentences to run concurrent with each other and with those sentences imposed in case No. CC-86-358.
I
The appellant argues that the cases against him were improperly consolidated for trial purposes. Specifically, the appellant alleges that he was denied his right to a fair trial through the consolidation of two cases involving separate victims of crimes occurring at separate times. He further alleges that the consolidation was erroneous because the seven-day period established in
“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. Proceedings thereafter shall be the same as if the prosecution initially had been under a single indictment, information, or complaint. However, the court shall not order that the offenses be tried together without first providing the defendant and the prosecutor an opportunity to be heard.” (Emphasis added.)
The record indicates that the State filed a motion to modify/correct the record pursuant to
“Upon consideration of the testimony presented the Court finds that the State‘s Motion to Amend is due to be Denied. It is therefore, ORDERED, ADJUDGED and DECREED that the State‘s Motion to Modify/Correct Record Pursuant to Rule 10(f) A.R.A.P. is hereby Denied. Accordingly, the Record in this cause shall not be modified to reflect joinder or consolidation of the two cases for which the Appellant was tried in Elmore County as this Court does not find that the Appellant gave his consent on the Record prior to the trial of these cases.”
A hearing was held on the State‘s motion in which the prosecutor testified that she
The Alabama Supreme Court, in Ex parte Glanton, 474 So.2d 156 (Ala.1985), held that the provision in
“We held in Ex parte Jones, [473 So.2d 545 (Ala.1985)], that the purpose of a similar provision,
The Alabama Supreme Court stated that the reason for this rule was that the knowledge of whether the defendant would be facing one charge or multiple charges was crucial to trial strategy and case preparation. Thus, by consenting, the defendant implied that consolidation would not affect or hamper his trial strategy. Furthermore, because the defense counsel failed to object to consolidation, this issue is not preserved for our review.
II
The appellant argues he was denied effective assistance of counsel in that his defense counsel at trial failed to object to the consolidation and because his counsel failed to present evidence of a known history of mental illness, as shown in psychiatric reports, although the defendant entered a plea of not guilty by reason of insanity. However, the appellant was not substantially prejudiced by the failure of his defense counsel to object to the consolidation. The record indicates that both alleged offenses occurred on June 6, 1986. In both cases, the appellant attempted to rape his victim.
Two or more offenses may be properly joined for trial, if the offenses:
“(i) are of the same or similar character; or
“(ii) are based on the same conduct or are otherwise connected in their commission; or
“(iii) are alleged to have been part of a common scheme or plan.”
The two offenses were of the same or similar character and appeared to be part of a common scheme, design, or plan. The judge suggested at trial that evidence of each offense would have been admissible at the trial of the other, had separate trials been held. See C. Gamble, McElroy‘s Alabama Evidence, § 69.01(6) (3d ed. 1977). Thus, the consolidation of these cases was proper, and the appellant was not prejudiced thereby. Crawford v. State, 485 So. 2d 391, 394-95 (Ala.Cr.App.1986).
Further, we cannot argue that the appellant was denied effective assistance of counsel on the basis that his attorney did not agressively pursue the insanity defense. The record includes the report of a forensic evaluation conducted on the appellant by Dr. Bell of the Taylor Hardin Secure Medical Facility. The appellant was adjudged competent to stand trial and, as to his probable mental state at the time of the alleged offenses, he reported a history of psychiatric treatment but “negated the validity of such treatment by insinuating that he submitted to treatment for ulterior motives.” The examiner concluded that
Although the appellant alleges that the medical records from the V.A. Hospital concerning his mental status should have been secured and admitted, Dr. Bell indicates in the forensic evaluation report that those records were not available because the appellant refused to sign consent forms to allow their release.
“Under the circumstances, counsel‘s decision not to pursue such a defense was the exercise of reasonable professional judgment, and not an error which could be viewed as a deficiency in professional performance. Certainly, such conduct cannot be judged as an error `so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’ Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) ].”
Dunkins v. State, 489 So.2d 603, 608 (Ala. Cr.App.1985).
AFFIRMED.
All the Judges concur.