Petition — Weatherford v. Alabama

Supreme Court brief1979

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~ “Bupreme Court, U. eB |

FILED i

JUL 19 1979

JR., CLERK -

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-96:4

DENNIS ALFONSO WEATHERFORD,

Petitioner,

versus

STATE OF ALABAMA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE COURT OF CRIMINAL APPEALS OF ALABAMA

BENJAMIN E. POOL

Post Office Box 2247

Montgomery, Alabama 36103

Attorney for Petitioner

SCOFIELDS' QUALITY PRINTERS, P. O. BOX 53096, N. O., LA. 70153 - 504/822-1611

TABLE OF CONTENTS

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CONSTITUTIONAL PROVISIONS AND

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STATEMENT) OF Tete CAGE). Sees... es... .

REASONS FOR GRANTING THE WRIT ........ 6

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CITATIONS

Allen v. State, 137S.E.2d711(Ga. App. 1964) ..... 9

Milton Realty Company v. Wilson, 107 So. 92 ...11

Neal v. State, 86 Okla. Crim. 283, 192 P.2d

PE ceaciicweedesvense Sree ered re err ee ee ee 8-9

People v. Byrnes, 84 Ca. App. 2d 72, 190 P.2d

B90, cart. Ct: BABA) B. GAP s. ovee sieves owcnss 8

People v. Jelke, 308 N.Y. 56, 123 N.E. 2d 769 ..... 8

CONSTITUTIONAL PROVISIONS AND

STATUTE INVOLVED

United States Constitution, Amendment VI ...... 4

United States Constitution, Amendment

a ee hace ene we 4,9,10,11

AUTHORITIES (Continued)

Page

U.S.C.S., Rules of Court, Supreme Court,

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OTHER AUTHORITY

Code of Alabama 1975, §12-21-260(a) ............ )

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

DENNIS ALFONSO WEATHERFORD,

Petitioner,

versus

STATE OF ALABAMA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF ALABAMA

TO THE HONORABLE CHIEF JUSTICE OF THE

UNITED STATES AND THE ASSOCIATE JUSTICES

OF THE SUPREME COURT OF THE UNITED

STATES:

Petitioner, Dennis Alfonso Weatherford, respect-

fully prays that a Writ of Certiorari be issued to review

the judgment and opinion of the Court of Criminal

Appeals of Alabama rendered on the 20th day of

February, 1979, which affirmed Petitioner’s conviction

for the crime of rape.

OPINIONS BELOW

The opinion of the Supreme Court of Alabama deny-

ing writ of certiorari is reported at 369 So. 2d 873. A

copy of that judgment appears in Appendix “A”.

The opinion of the Alabama Court of Criminal

Appeals has been reported at 369 So. 2d 863. A copy of

said opinion appears in Appendix “A”.

JURISDICTION

The judgment of the Court of Criminal Appeals of

Alabama was entered on the 20th day of February,

1979, and is annexed hereto in Appendix “A”, infra,

Page la.

A timely Application for Rehearing to the Court of

Criminal Appeals was denied, without opinion, on the

27th day of March, 1979. The Judgment thereon is an-

nexed hereto in Appendix “A”, infra, Page 25a.

A Petition for Writ of Certiorari was filed within the

time required by the laws of Alabama in the Supreme

Court of Alabama, and this was denied on April 20,

1979. The Judgment thereon is annexed in Appendix

“A”, infra, Page 26a.

This Court has jurisdiction by virtue of Rule 19 of

the Rules of the Supreme Court of the United States

which provides, in pertinent part that “a review on writ

of certiorari. . . will be granted. . . where a State court

inal

has decided a federal question of substance. . .inaway

probably not in accordance with applicable decisions of

this Court”.

QUESTIONS PRESENTED

Whether a defendant in a criminal case is denied his

right to a public trial when the District Attorney,

without an Order or any sanction from the Court,

orders a spectator out of the Courtroom during the

course of the trial.

II.

Whether the due process clause of the Fourteenth

Amendment dictates that a defendant ina criminal case

be allowed to take the deposition of the prosecuting

witness when a material part of the defense depends on

the testimony of the prosecuting witness.

Ill.

Whether it is a violation of constitutional due proce ss

for the prosecutor in acriminal case to be allowed to ad-

duce testimony into the case relating to extraneous and

prejudicial facts, namely, whether or not the defer dant

had been booked for another offense on the morning of

the date that the alleged offense occurred.

CONSTITUTIONAL PROVISIONS

AND THE STATUTE INVOLVED

Constitution of the United States, Amendment XIV,

Section I:

Section 1, . . . nor shall any state deprive any

person of life, liberty, or property, without

due process of law; .

Il.

Constitution of the United States, Amendment VI:

In all criminal prosecutions, the accused shall

enjoy the right toa speedy and public trial,. . .

Il.

U.S.C.S., Rules of Court, Supreme Court, Criminal

Rule 19:

A review on writ of certiorari ... will be

granted .. .:

(a) Where a state court has decided a federal

question of substance . . . in a way prob-

ably not in smcordanés with applicable

decisions of this Court.

STATEMENT OF THE CASE

Petitioner was convicted in the Circuit Court of Lee

County, Alabama on the charge of rape and was sen-

tenced to thirty years in the penitentiary.

The chief witness for the State was the prosecutrix

who testified that a white male came in her bedroom

and said “keep quiet and you won’t get hurt”; that this

person partially entered her and then left. The follow-

ing morning she reported it to the police and went to

the police station in Auburn where she picked out the

Defendant through a two-way mirror.

The prosecutrix stated that she never hit or struck

the intruder; that she did not scream for help; that she

did not ask him to leave until the alleged act was com-

pleted. She further related that the intruder did not

have a weapon and that she did not claw at or scratch

the intruder.

The chief psychologist at Bryce Mental Hospital

testified that Petitioner was suffering from alcoholism

and had uncontrollable impulses; that, in his opinion,

Petitioner would not commit rape; that if Petitioner did

commit rape in August, 1977, he would have been

operating under an irresistable impulse on account of

mental illness.

Petitioner testified that on the date in question he

was highly intoxicated; that he had been to Bryce Men-

tal Hospital on several occasions; that he had never

raped anyone.

Prior to trial Petitioner was not allowed to take the

deposition of the prosecutrix. During trial the prose-

cutor ordered a spectator out of the Courtroom

without any sanction from the Court. Further, during

the trial the prosecution was allowed to introduce evi-

dence that the Defendant had been booked for in-

decent exposure on the morning following the alleged

rape.

REASONS FOR GRANTING THE WRIT

The first question presented is whether a defendant

in a criminal case is denied his right to a public trial

when the prosecutor, without an Order or any sanc-

tion from the Court, orders a spectator out of the

Courtroom during the course of a trial. During the trial

in question, the prosecutor ordered a spectator, the

Mayor of Loachapoka, Alabama, out of the Courtroom

as evidenced by the following quotes taken from the

Record:

A. “I told him he would have to stay out of the

Courtroom unless called as a witness.”

B. “Weasked that this person again, whom! do not

know, but I understand that he is a close friend of the

defendant, be removed from the Courtroom.”

C. “I just asked him to stay out of the Courtroom,

Your Honor.”

D. “I would like to put into the Record that the

Court told me that if { had any objection to the person

to ask him to stay out of the Courtroom during the

trial, and I asked him to stay out of the Courtroom dur-

ing the trial.”

The spectator was intimidated to the extent that he

was afraid to return to the Courtroom until called for

by the Judge, as evidenced by the following remarks

which were made by the spectator when he was called

back to the Courtroom:

A. “Question. AndI‘llask you whether or not you

were asked to leave by anyone?

Answer. Yes, sir.

Question. And who was the person who ask-

ed you to leave?

Answer. Mr. Myers. =

Question. You’re referring to the District At-

torney, Mr. Ronald L. Myers?

Answer. Yes, sir.”

B. “I didn’t intend tocome back in here until I found

out what was wrong.”

C. “Question. Let meask you this: Did that in any

way discourage you from coming back into this

Courtroom?

Answer. Certainly did, certainly did. I didn’t

have any idea, any notion, of coming back after

being told not to come back.

Question. Were you afraid to come back in

until the Judge got the word to you to come

back in?

Answer. I was waiting to see the Judge to see

why I couldn’t come back.”

The Court of Criminal Appeals, in upholding the

conviction, cited the proposition that “a Judge has the

inherent power to preserve order and decorum in the

Courtroom and that in the exercise of such power he

may eject spectators without infringing an accused’s

right to a public trial.” However, it was not the Judge

who ordered the spectator out of the Courtroom, but

the prosecutor. In fact, in the Record the following

appears: “The Court has not taken any action to eject

anyone from the trial.”

Petitioner contends that aconstitutional error of this

magnitude is per se injurious to him and that the “harm-

less error” doctrine is not here applicable. Where an ac-

cused has been deprived of his right to a public trial

prejudice is to be presumed without the Court looking

into the matter of actual prejudice. The concept of a

public trial transcends the issue of defendant's guilt or

the disposition of a particular case. People v. Byrnes, 84

Ca. App. 2d 72, 190 P.2d 290, cert. den. 335 U.S. 847:.

People v. Jelke, 308 N.Y. 56, 123 N.E. 2d 769; Neal v. State,

86 Okla. Crim. 283, 192 P.2d 294; Allen v. State, 137

S.E. 2d 711 (Ga. App. 1964).

Il.

The second question presented is whether the due

process clause of the Fourteenth Amendment dictates

that a defendant in a criminal case be allowed to take

the deposition of the prosecuting witness when a

material part of the defense depends on the testimony

of the prosecuting witness. Petitioner filed a pre-trial

motion to take the deposition of the prosecutrix, said

motion being made pursuant to Section 12-21-260(a),

Code of Alabama 1975, which provides:

“The defendant may take the deposition of

any witness ... where the defense or a

material part thereof, depends exclusively on

che testimony of the witness.”

The Court of Criminal Appeals took the position that

inasmuch as the defense or a material part thereof did

not depend exclusively on the testimony of the prose-

cutrix, the trial court made a correct ruling. However,

when the motion was filed, as was stated in the motion,

Petitioner had represented to defense counsel that he

did not remember any of the events which allegedly

transpired on the date in question and therefore, at

that stage of the proceedings, the defense did, in fact,

depend exclusively upon the testimony of the prosecu-

trix.

Petitioner contends that it was a denial of due

process of the law under the Fourteenth Amendment

to deny him adequate pre-trial discovery. Especially is

this true in view of the fact that Defendant had a long

history of mental illness of which the trial court was

aware, including several incarcerations at Bryce Men-

tal Hospital. In a case such as this, where there was no

preliminary hearing, as the State chose to initiate the

criminal proceedings by indictment, and no other

means of discovery available to Defendant under

Alabama law, a deposition was the only opportunity for

the Defendant, especially a mentally deranged defen-

dant, to discover the case against him.

Il.

The third question presented is whether it is a viola-

tion of constitutional due process for the prosecutor to

be allowed to adduce testimony relating to the fact that

the Defendant had been booked for indecent exposure

during the early morning hours of the date in question.

Over defense counsel’s objection, a detective was al-

lowed to testify that Petitioner was arrested and book-

ed on a charge of indecent exposure on the morning

after the alleged rape occurred. The Court of Criminal

Appeals held that any error in the admission of this

testimony was cured when defense counsel intro-

duced the testimony of a psychologist which was to the

effect that Petitioner had been arrested on previous oc-

casions for indecent exposure.

This issue arose in the context of the trial court al-

lowing the detective to answer the question “What

charge the defendant was booked on during the early

morning hours of August 11.” A timely objection was

overruled. The opinion of the Court of Criminal

Appeals is in conflict with the proposition that “the due

cross-examination of the witness upon the matter

brought out by the other side was not a waiver or made

competent the evidence offered.” Milton Realty Company

v. Wilson, 107 So. 92. Which side brought the matter up

first is the important question, not whether or not the

Petitioner went into this matter only after the prose-

cution brought it up.

Appellant contends that this clearly is a denial of due

process of law and the Fourteenth Amendment to the

United States Constitution.

CONCLUSION

Based on the foregoing contentions, Petitioner con-

tends he was not given a fair trial and consequently his

right to due process of law under the Fourteenth

Amendment to the U.S. Constitution has been vio-

lated. Petitioner respectfully urges this Honorable

Court to grant his Petition for Writ of Certiorari.

Respectfully submitted,

BENJAMIN E. POOL

CERTIFICATE OF SERVICE

| hereby certify that three copies of the foregoing

petition have been served upon opposing counsel of

record, Charles Graddick, Attorney General, State

Capitol Building, Montgomery, Alabama 36104, by

placing the same properly addressed in the United

States Mail with adequate postage affixed thereto this

—_. day of July, 1979.

BENJAMIN E. POOL

APPENDIX “A”

THE STATE OF ALABAMA

JUDICIAL DEPARTMENT

THE ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 1978-79

DENNIS ALPHONSO WEATHERFORD

versus 5 Div. 428

STATE

Filed: Feb. 20, 1979

Appeal from Lee Circuit Court

BOWEN, JUDGE:

The appellant was convicted for rape and sentenced

to thirty years’ imprisonment. Ten separate grounds

for reversal of the conviction are asserted on appeal.

It was not error for the trial judge to excuse the police

officer in charge of the investigation from a general

order excluding witnesses from the courtroom. It is

within the discretion of the trial judge to excuse some

witnesses and not others from the operation of “the

rule” of exclusion. That discretion has been upheld in

the following cases involving the excusal of law en-

forcement officers. Webb v. State, 100 Ala. 47, 14 So. 865

(1894); Lewis v. State, 55 Ala.App. 140, 313 So.2d 566

(1975); James v. State, 52 Ala.App. 389, 293 So.2d 305

(1974); Goodman v. State, 52 Ala.App. 265, 291 So.2d 358

(1974); Browning v. State, 51 Ala.App. 632, 288 So.2d 170

(1974); Denson v. State, 50 Ala.App. 409, 279 So.2d 580

(1973); DeFranze v. State, 46 Ala.App. 283, 241 So.2d 125

(1970); Elrod v. State, 281 Ala. 331, 202 So.2d 539 (1967);

Ledbetter v. State, 34 Ala.App. 35, 36 So.2d 564, cert.

denied, 251 Ala. 129, 36 So.2d 571 (1948); McKenzie ».

State, 26 Ala.App. 295, 158 So. 773 (1935); Wright v. State,

1 Ala.App. 124, 55 So. 931 (1911). See also C. Gamble,

McElroy Alabama Evidence, §286.01 (3rd ed. 1977).

While the discretion of the trial judge is not an arbi-

trary one and must not be abused, permitting one law

enforcement officer to remain in court during the

presentation of the evidence, notwithstanding the rule

to exclude witnesses, is a common and usual practice.

At trial defense counsel gave no reason for his objec-

tion to the officer’s presence in the courtroom. In the

absence of any clear showing of the abuse of the dis-

cretion of the trial court and actual prejudice to the

appellant we find no error.

Error is also predicated upon the in-court identifica-

tion of the appellant by the prosecutrix.

— a —

The rape occurred between 10:30 and 12:00 on the

night of August 10, 1977. At 8:00 the next morning the

prosecutrix went to the Auburn Police Department, re-

ported the offense and gave a description of her assail-

ant. A detective then took her to a small room where

she viewed the appellant through a “two way mirror”.

The appellant was in custody on another charge when

the showup took place. The prosecutrix testified that

she “insisted on seeing the person who was in jail”, that

she “immediately recognized” him and that she was

never shown any photograph before the identification

procedure.

This court has previously considered the “showup”,

its propriety, and its admissibility in evidence. Brazell v.

State, Ala.Cr.App., 3 Div. 849 (Ms. June 20, 1978).

“Through the practice of showing a suspect

singly to persons for purposes of identifica-

tion, and not as part of a lineup, has been wide-

ly condemned, Stovall v. Denno, 388 U.S. 293, 87

S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967), the

admission of evidence of a showup without

more does not violate due process of law. Neil

v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34

L.Ed.2d 401 (1972); Manson v. Brathwaite, 432

U.S. __, 97 S.Ct. 2243, 53 L.Ed.2d 140

(1977); Annotation: Admissibility of Evi-

dence of Showup Identification as Affected by

Allegedly Suggestive Showup Procedures, 39

A.L.R. 3d 791 (1971).

“Convinced of the dangers of eyewitness

identification, the United States Supreme

Court has established constitutional and pro-

cedural safeguards surrounding the use of

such testimony. United States v. Wade, 388 U.S.

218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967);

Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951,

18 L.Ed.2d 1178 (1967); Stovall, supra; Neil v.

Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d

401 (1972); Manson, supra; Coleman v. Alabama,

399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387

(1970).

“Whether an out-of-court identification pro-

cedure has violated due process depends upon

the ‘totality of the circumstances’. Stovall,

supra; Simmons, supra; Coleman, supra; Biggers,

supra. This totality of the circumstances test

is the standard in deciding whether an iden-

tification procedure is unnecessarily sugges-

tive and conducive to irreparable mistaken

identification. Caver v. Alabama, 537 F.2d 1333

(Sth Cir. 1973). Under this test the factors to

be considered in evaluating the likelihood of

misidentification include the opportunity of

the witness to view the criminal act at the time

of the crime, the witness's degree of attention,

the accuracy of the witness’s prior descrip-

tion of the criminal, and the level of certainty

demonstrated by the witness at the confron-

tation. Biggers, 93 S.Ct. 382; Robinson v. State, 45

Ala.App. 236, 228 So0.2d 850 (1969). Against

—_——- ——_- »>--- -

these factors is to be weighed the corrupting

effect of the suggestive identification itself.

“In determining the constitutional adequacy

of pretrial identification procedures and the

admissibility of identification testimony, the

central question is whether, under the totali-

ty of the circumstances, the identification was

reliable. Manson, supra. This determination in-

volves the application of a two-pronged test.

“(T)he required inquiry is two-pronged. The

first question is whether the initial identifica-

tion procedure was ‘unnecessarily’ (Stovall) or

‘impermissibly’ (Simmons) suggestive. If it is

found to have been so, the court must then

proceed to the question whether the pro-

cedure found to have been ‘unnecessarily’ or

‘impermissibly’ suggestive was so ‘conducive

to irreparable mistaken identification’ (Stovall)

or had such a tendency ‘to give rise to a very

substantial likelihood of irreparable misiden-

tification’ (Simmons) that allowing the witness

to make an in-court identification would be a

denial of due process. Linited States ex rel. Phipps v.

Follette, 428 F.2d 912, 914-915 (2d Cir. 1970).

“Suggestiveness is inherent in the showup

identification procedure. Wall, Eye- Witness Iden-

tification In Criminal Cases, P. 28. Nevertheless,

prompt, on-the-scene confrontation may be

consistent with good police work. Cornelius v.

State, 49 Ala.App. 417, 272 So.2d 623 (1973);

Payne v. State, 48 Ala.App. 401, 265 So.2d 185,

cert. denied, 283 Ala. 748, 265 So.2d 192, cert.

denied, 409 U.S. 1079, 93 S.Ct. 703, 34 L.Ed.2d

669 (1972); Robinson v. State, 55 Ala.App. 658,

318 So.2d 354 (1975). One-on-one confron-

tations conducted shortly after the commis-

sion of the crime may be justified for they

allow the ‘fresh’ identification before memory

has dimmed or the suspect has changed his

clothing, the prompt release of innocent per-

sons, and the continuation of the search for

the perpetrator with a minimum of delay.

Wall, p. 38. For these considerations to be

effective, the on-the-scene identification

must be prompt. Carter v. State, Ala.Cr.App.

340 So.2d 94, 98 (1976). (Our consideration of

Robinson, the supporting authorities cited

therein, and other authorities on the subject,

convinces us that most, if not all, of the ap-

plicable cases have involved periods of time of

less than an hour between the crime and the

confrontation.’)”

* * * *

“It is mere sophistry to argue that the show-

up was not unnecessarily suggestive. A show-

up by its inherent nature is suggestive because

the witness is given no other choice. How-

ever it is permitted where conducted prompt-

ly after the commission of a crime or demand-

ed by necessity, emergency or exigent cir-

cumstances.”

* * * «

“If, despite the violation of due process stand-

ards, the prosecution can establish by clear

and convincing evidence that the in-court

identification testimony, rather than stem-

ming from the unfair pretrial confrontation,

has an independent source, the in-court testi-

mony need not be excluded. Wade, 87 S.Ct.

1939.”

There is no contention that the showup was unnec-

essarily suggestive or tainted apart from that sugges-

tiveness inherent in any showup procedure.

The testimony of the prosecutrix is clear and con-

vincing that her in-court identification of the appellant

was based on an independent source and did not stem

from any unfair pretrial confrontation. When she saw

her assailant standing near her bed she “recognized

him immediately. He had been at my house February

before.” Though the prosecutrix gave the police a

description of her assailant, the record contains no

description or picture of the appellant and hence we

cannot determine the degree to which the description

given by the prosecutrix fit the appellant. However we

note that on cross examination of the prosecutrix on

this point defense counsel attempted to impeach her

description only by showing that the appellant was “in

the vicinity of six foot or six foot-one” with his shoes on

while the victim described her assailant as ap-

proximately five foot eight inches with his shoes off.

This discrepancy goes to the credibility of the victim’s

identification rather than its admissibility. The prose-

cutrix never waivered in her identification of the

appellant.

There is simply no evidence that the showup tainted

the victim’s in-court identification. Tiptroth v. State, 342

So.2d 959 (Ala.Cr.App.), cert. denied, 342 So.2d 961

(1977); Thomas v. State, 50 Ala.App. 227, 278 So.2d 230

(1973). The appellant’s argument that the one man

showup identification procedure is a per se violation of

due process is not supported by legal precedent. The

argument that this particular procedure violated the

appellant’s constitutional rights is not supported by the

facts.

II]

The appellant asserts that it constituted “gross

prosecutorial misconduct” and denied him his con-

stitutional right to a public trial for the District At-

torney to order a spectator not to return to the court-

room during the trial.

During the cross examination of the prosecutrix

there was an off-the-record discussion between the

Court and the attorneys for both sides. Apparently the

District Attorney mentioned that a spectator was caus-

ing a problem and the trial judge “asked him to speak to

the spectator in this regard”. The jury was then sent

back to the jury room. Outside of the courtroom and

out of the hearing and presence of the jury, the District

Attorney told the spectator to “stay out of the court-

room unless called as a witness”. The prosecutor stated

that his action was prompted because the spectator was

sitting close to the jury and “snickering” at the testi-

mony of the prosecutrix. Neither the judge nor defense

counsel observed or overheard any of this conduct.

When the District Attorney announced ready to pro-

ceed and informed the court of his actions, defense

counsel objected and the trial judge immediately

ordered a recess in order that the spectator could be

found and returned to the courtroom. When the spec-

tator was not found during that recess defense counsel

moved for a mistrial and the trial judge ordered an-

other recess to allow additional time to find the spec-

tator.

Later that same afternoon the spectator, Howell

Rowell, returned to the courtroom. He was placed un-

der oath and testified that he was leaving the court-

room room at approximately 2:25. When he got to the

door the District Attorney told him that he could not

return. Mr. Rowell stated that he did not return to the

courtroom until 4:30 when the judge sent for him and

that because of the prosecutor’s remarks he was afraid

to return. He testified that he was a friend of the

appellant’s and that he found the testimony of the pros-

ecutrix “certainly amusing”.

10a

During Mr. Rowell’s absence a newspaper reporter

and other spectators were present in the courtroom.

Though asserted in brief, there is no evidence that Mr.

Rowell was the only friend of the appellant in the

courtroom.

The trial judge overruled the defense motion for a

mistrial and instructed Mr. Rowell that he was

welcome to remain in the courtroom, that the trial was

open to the public, and that he had done nothing to cur-

tail that right.

The right to a public trial is guaranteed by Section 6

of the Alabama Constitution of 1901. The words

“public trial” mean “trial as usually and generally con-

ducted, where the courthouse is open to practically

anyone who may wish to attend, and do not mean one

where the public is so generally excluded as to confine

the attendants to those engaged and interested in the

trial and the relatives of the parties”. Wade v. State, 207

Ala. 1, 2, 92 So. 101 (1921).

“ ‘The constitutional right to a public trial is

not a limitless imperative.’ Lacaze v. United

States, 5 Cir., 1968, 391 F.2d 516, 521. The

fact that some members of the public were

barred from the courtroom does not neces-

sarily mean that a denial of a public trial has

occurred; the ‘decision must turn on the par-

ticular circumstances of the case, and not

upon a question-begging because abstract and

absolute right to a “public trial”.’ Levine v.

lla

United States, 362 U.S. 610, 616-617, 80 S.Ct.

1038, 1043, 4 L.Ed.2d 989 (1960). See also 6

Wigmore on Evidence §1835 at 338.” Aaron v.

Capps, 507 F.2d 685, 687 (Sth Cir.), cert.

denied, 423 U.S. 878, 96 S.Ct. 153, 46 L.Ed.2d

112 (1975).

The requirement of a public trial “is not absolute in the

sense that a defendant has the right to have any partic-

ular person present under all circumstances during the

course of the trial”. Linited States ex rel. Laws v. Yeager, 448

F.2d 74, 80 (3rd Cir. 1970).

It is generally recognized that a judge has the in-

herent power to preserve order and decorum in the

courtroom and that in the exercise of such power he

may eject spectators without infringing an accused's

right to a public trial. 48 A.L.R.2d 1436 at 1448. “If the

conduct of a spectator admitted toa criminal trial inter-

feres with the administration of justice he may be re-

moved. Such removal does not constitute a denial of

any right of the public or the accused to a public trial.”

Williams v. State, 57 Ala.App. 158, 163, 326 So.2d 686

(1975), cert. denied, 295 Ala. 428, 326 So.2d 692 (1976).

An order excluding certain spectators from the court-

soom does not deny the accused a public trial where it

appears to the trial judge that a witness was being in-

timidated by certain persons in the courtroom. United

States ex rel. Bruno v. Herold, 408 F.2d 125 (2d Cir. 1969),

cert. denied, 397 U.S. 957, 90 S.Ct. 947, 25 L.Ed.2d 141

(1970); United States ex rel. Orlando v. Fay, 350 F.2d 967 (2d

Cir. 1965), cert. denied, 384 U.S. 1008, 86 S.Ct. 1961,

16 L.Ed.2d 1201 (1966).

12a

A similar factual situation was present in Common-

wealth v. Burton, 330 A.2d 833 (Pa. 1975). There, as here,

the District Attorney ordered a spectator out of the

courtroom.

“(O)n the fifth day of the seven-day trial,

when Mrs. Williams (the Commonwealth’s

main witness) was scheduled to testify, the

district attorney requested court personnel to

keep appellant’s wife out of the courtroom,

explaining that appellant’s wife had threaten-

ed Mrs. Williams. The district attorney also

ordered all members of the Black Panthers

kept out of the trial while Mrs. Williams testi-

fied. Pursuant to this request, other members

of appellant’s family were also accidentally ex-

cluded. When this came to light, on the day

following Mrs. Williams’ testimony,

appellant’s counsel moved for a mistrial,

which motion was denied. While it is true, as

appellant argues, that the district attorney had no

authority to exclude spectators, after the trial judge

was made aware of the situation, he ratified

the actions of the district attorney at least in-

sofar as appellant’s wife and members of the

Black Panthers were concerned. This pre-

sumably was based upon the judge’s deter-

mination that appellant’s wife and the Black

Panthers might cause the witness, Mrs.

Williams, to change her testimony out of fear.

See United States ex rel. Laws v. Yeager, 448

13a

F.2d 74 (3rd Cir. 1971), Commonwealth v.

Principatti, 260 Pa. 587, 104 A. 53 (1918). With

regard to those members of appellant's family

who had been excluded by mistake, we note

that the situation was immediately corrected

when it was brought to the attention of the

court. Under the circumstances, we do not

believe that appellant was denied the right toa

public trial.” Burton, 330 A.2d at 837 (emphasis

added).

While we recognize the general rule that, where the

accused has been denied a public trial, prejudice will be

presumed without the burden being placed upon the

accused to show actual prejudice, 48 A.L.R.2d at 1454,

no argument has been advanced that Mr. Rowell’s

absence injured or prejudiced the appellant. Under the

circumstances of this case we do not think that the ex-

clusion of this one spectator denied the appellant his

right to a public trial.

On cross examination defense counsel asked the

prosecutrix if she had ever seen a psychologist on a pro-

fessional basis. Receiving an affirmative response he

then established that she had never seena psychologist

or a psychiatrist prior to August of 1977, the month she

was raped.

This inquiry properly allowed the State to show that

the prosecutrix had received psychiatric or psy-

14a

chological help after August of 1977. Brothers v. State, 236

Ala. 448, 452, 183 So. 433 (1938); Kroell v. State, 139 Ala.

1, 36 So. 1025 (1904).

A party may go into any matter gone into by the ad-

verse party and explain anything to his detriment.

Gilbert v. City of Montgomery, 337 So.2d 140 (Ala.Cr.App.

1976); Craven v. State, 22 Ala.App. 39, 111 So. 767 (1927).

A party who has brought out evidence ona certain sub-

ject has no valid complaint as to the action of the trial

court in allowing his adversary to introduce evidence

on the same subject. Brock v. State, 54 Ala.App. 310, 307

So.2d 707 (1975); Mitchell v. State, 42 Ala.App. 41, 151

So.2d 752, cert. denied 225 Ala. 696, 151 So.2d 761

(1962).

It was not error to allow the prosecutrix to testify to

the details of an incident occurring on her front porch

on a night in February, 1977, when the appellant ex-

posed himself to her.

In a rape charge, the State may prove, as tending to

show a sexual passion in the accused for the alleged vic-

tim, acts by the accused prior to the alleged rape indi-

cating a sexual passion for the victim. Barnes v. State, 88

Ala. 204, 7 So. 38 (1890); Pope v. State, 10 Ala.App. 91, 64

So.526 (1914). The identity exception to the general

rule excluding evidence of prior and subsequent crimes

when their only probative value is to show in the defen-

dant a tendency or disposition to commit the now-

15a

charged crime “seems to have taken on a more liberal

definition when the defendant is charged with a sex

crime such as rape. In such cases the courts seem to

allow proof of other similar crimes by the accused if

they, in any way, go to identify him as the person who

committed the now-charged crime.” McElroy

§70.01(22)(b).

“If the accused’s commission of another crime is ad-

missible. .. , the State may prove in meticulous detail

the manner in which the accused committed the other

crime.” McElroy §69.02(8). See Bynum v. State, 348 So.2d

804 (Ala.Cr.App.), cert. quashed, 348 So.2d 828 (Ala.

1976); McDonald v. State, 57 Ala.App. 529, 329 So.2d 583, »

cert. quashed, 295 Ala. 410, 329 So.2d 596 (1975).

Though not involving evidence of a prior criminal

act, in Mincy v. State, 262 Ala. 193, 78 So.2d 262 (1955), it

was held that, in a prosecution for rape, the testimony

of the prosecutrix as to the events which involved the

defendant and which happened on the day prior to the

offense was admissible on the question of identifica-

tion. This evidence was admissible under the rule that

antecedent circumstances tending to shed light on the

transaction or elucidate the facts or show preparation

to commit the crime are always admissible in evidence.

Additionally on cross examination of the prosecu-

trix defense counsel brought out the fact that she had

not filed a report with the police with regard to the in-

cident in February. At this point in the trial there had

beer no indication in any of the testimony that there

16a

could or should have been anything reported to police

concerning the encounter between the prosecutrix and

the appellant in February. This opened the door for the

State, on redirect examination, to go into this matter

and show the circumstances connected with it. Thames

v. State, 10 Ala.App. 210, 64 So. 648 (1914). On redirect

examination the State may explain or rebut discredit-

ing facts brought out by the defense. Payne v. Ray, 206

Ala. 432, 90 So. 605 (1921); Jones v. State, 22 Ala.App.

141, 113 So. 478 (1927); Whatley v. State, 144 Ala. 68, 39

So. 1014 (1906).

The appellant contends that the consent to search

was not knowingly, intelligently, and voluntarily given

and that a search warrant was required.

Proper consent may constitute a waiver of Fourth

Amendment rights, Zap v. United States, 328 U.S. 624, 66

S.Ct. 1277, 90 L.Ed. 1477 (1946), and makes a search

warrant wholly unnecessary. Toston v. State, 333 So.2d

161 (Ala.Cr.App. 1976). The voluntariness of consent

to search is a question of fact to be determined from the

totality of all the circumstances. Schneckloth v. Bustamonte,

412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973);

United States v. Smith, 543 F.2d 1141 (Sth Cir. 1976).

The failure to inform the accused of his right to

refuse is a factor to consider in determining voluntari-

ness but is not to be given controlling significance. Unit-

ed States v. Smith, 543 F.2d 1141, 1143 (Sth Cir. 1976).

17a

“While knowledge of the right to refuse consent is one

factor to be taken into account, the government need

not establish such knowledge as the sine qua non of an

effective consent.” Schneckloth, 412 U.S. at 227, 93 S.Ct.

at 2048. The burden of proving that the consent was, in

fact, freely and voluntarily given rests upon the

prosecution. Bumper v. North Carolina, 391 U.S. 543, 88

S.Ct. 1788, 20 L.Ed.2d 797 (1968). “The State must

prove that there was no duress or coercion, express or

implied. The consent must be unequivocal and specific,

and freely and intelligently given. There must be clear

and positive testimony.” Hardy v. State, 53 Ala.App. 75,

78, 297 So.2d 399 (1974).

Here the trial court, on conflicting evidence, found

that the consent to search was voluntarily given. We

apply the same rules in reviewing a trial judge’s deter-

mination of the voluntariness of a consent to search as

we do in reviewing his determination of the voiuntari-

ness of acontession. Thus when conflicting evidence is

presented on the issue of the voluntariness of a consent

to search and the trial judge finds that the consent was

voluntarily given, great weight must be given his judg-

ment. This finding will not be disturbed on appeal un-

less the appellate court is convinced that the con-

clusion is palpably contrary to the weight of the evi-

dence. Even where there is credible testimony to the

contrary, if the evidence is fairly capable of supporting

the inference that the rules of freedom and voluntari-

ness were observed, the ruling of the trial judge need

only be supported by substantial evidence and not toa

18a

moral certainty. Sullivan v. State, 340 So.2d 878, 880-881

(Ala.Cr.App.), cert. denied, 340 So.2d 881 (Ala. 1976).

Though it is argued that the appellant was in-

toxicated and had been without sleep for some time

there is also credible evidence to the contrary and suf-

ficient to support the finding of voluntariness made by

the trial judge.

Vil

Over the objection of defense counsel Detective

Downing was permitted to testify that the appellant

was arrested and booked on a charge of indecent ex-

posure on the morning after the rape. It was on this

charge that the appellant was being held when viewed

by the prosecutrix.

Any error in the admission of this testimony was

cured when defense counsel, in attempting to prove the

legal insanity of the appellant at the time of the crime,

introduced the testimony of Dr. Edwin Conrad Seger,

Chief Psychologist on the Forensic Unit at Bryce

Hospital, that the appellant “got arrested several times

as being a peeping Tom and ‘voyeurism’, it’s called”;

that “he’s also been arrested several times for indecent

exposure” and that the appellant has a “long history” of

“peeping Tom, exhibitionism, and things of that

nature”. This testimony of the appellant’s own wit-

ness in response to questions from his own attorney

eradicated any possible prejudice that may have re-

19a

sulted from Detective Downing’s testimony. Strickland

v. State, 151 Ala. 31, 44 So. 90 (1907); Thompson v. State, 53

Ala.App. 484, 301 So.2d 248 (1974); McKenzie v. State, 33

Ala.App. 7, 33 So.2d 484, cert. denied, 250 Ala. 178, 33

So.2d 488 (1948).

Vill

The appellant contends that the State failed to prove

a sufficient degree of force to constitute rape and

therefore his motion to exclude the State’s evidence

was due to be granted. In brief he argues that:

“The evidence was to the effect that there was

no fight between the alleged victim and the

Defendant; that there was no affirmative evi-

dence of a struggle; that there was no evi-

dence that any blows or punches were ex-

changed or inflicted; that there was no evi-

dence that the prosecuting witness scratched

or attempted to scratch the Defendant; that

there was no evidence that the alleged victim

screamed out in despair or hollered for help;

that there was no evidence that the Defendant

offered to kill the alleged victim or do her

serious bodily harm. In fact, the alleged victim

testified that the only thing that the Defen-

dant said to her which could be construed as a

threat was, ‘keep quiet and you won't get

hurt’.”

The prosecutrix was startled from her sleep in her

own bedroom by a male who was standing near her

bed. From what she could see of the individual, he was

20a

“stripped to the waist”. The prosecutrix testified that

she“was so dumbfounded and it happened so quickly —

he was on top of me immediately”. She was told to

“keep quiet and you won’t get hurt”. The appellant

“moved”, “pulled”, “dragged” and “wrestled” her

around on the bed because she resisted by “locking” her

legs and thighs. She tried to push herself away and

thought about screaming but did not think that she

would be heard. The prosecutrix testified that the

appellant had her “pinned down” and it was impossible

to hit him. She stated that she was in a state of shock

and was bruised on her arms and legs though a physi-

cian found no evidence of any bruises the next day. The

prosecutrix told the physician that there was “no

struggle” and his report states that “no nail bed speci-

men is taken as the patient states she did not scratch or

resist in this way”.

To constitute rape, the degree of force used need not

be such as to place the victim under such reasonable

apprehension of death or bodily harm as to overpower

her will, it being sufficient that she was under such

duress that the act was accomplished against her con-

sent. Brummitt v. State, 344 So.2d 1261 (Ala.Cr.App.

1977); Cole v. State, 19 Ala.App. 360, 97 So. 891, cert.

denied, 210 Ala. 179, 97 So. 895 (1923). “The force

necessary to be used, to constitute the crime of rape,

need not be actual, but may be constructive or implied.

An acquiescence to the act, obtained through duress or

fear of personal violence, is constructive force, and the

consummation of unlawful intercourse by the man

21a

thus obtained would be rape.” Shepherd v. State, 135 Ala.

9, 12, 33 So. 266 (1903).

“An acquiescence obtained by duress, or fear

of personal violence, will avail nothing, the

law regarding such submission as no consent

at all. If the mind of the woman is overpower-

ed by a display of physical force, through

threats, expressed or implied, or otherwise, or

she ceases resistance through fear of great

harm, the consummation of unlawful inter-

course by the man would be rape. 1 Whart. Cr.

Law, §557; 2 Bishop Cr. Law, (7th Ed.), §1125;

3 Greenl. Ev., (14th Ed.), §211.”

McQauirk, 84 Ala. 435, 347, 4 So. 775 (1887).

The offense of rape is complete when unlawful inter-

course is accomplished by overcoming resistance, and

procuring submission by means of threats, though

there may be no intention in fact to apply actual force.

Taylor v. State, 249 Ala. 130, 30 So.2d 256 (1947); Norris v.

State, 87 Ala. 85, 87, 6 So. 371 (1888).

“While the law arms a woman who is assault-

ed by a man with the intent to ravish her with

the right to stand her ground, and, if

necessary, to kill her assailant to protect her

person from the gratification of his lust, the

law does not compel her so to do. All of the cir-

cumstances surrounding the commission of

the alleged crime are to be considered, and

22a

whether the prosecutrix does or does not

repel force by force, or resist her assailant to

the uttermost, if the act of penetration is

actually accomplished by what, in law,

amourts to legal force, and against the will of

the prosecutrix, the defendant is guilty of

rape. The relative size of the parties, the age of

each, their social and racial differences, and

the absence of efforts on the part of the pros-

ecutrix to avoid the act are all matters to be

weighed by the jury on the question as to

whether all the necessary elements of the

crime exist, but when all the elements of the

crime do exist the crime is one of rape,

although the prosecutrix may have made no

effort to resist.” Herndon v. State, 2 Ala.App.

118, 125-126, 56 So. 85 (1911).

23a

The trial judge denied the appellant's pretrial motion

to take the deposition of the prosecutrix. This motion

was made pursuant to that portion of Section 12-21-

260(a), Code of Alabama 1975, which provides:

“The defendant may take the deposition of

any witness ... where the defense, or a

material part thereof, depends exclusively on

the testimony of the witness.”

In the motion it was asserted that “the Defendant has

advised this attorney that he has no remembrance of

the events which allegedly transpired on the date in

question; therefore, at this stage, the defense depends

exclusively on the testimony of the said” prosecutrix. In

denying the request the trial judge noted:

Under the facts outlined the State presented prima

facie evidence of the elements of rape and the trial

judge properly submitted the case to the jury.

The appellant’s objection to the closing argument

was sustained. There was no motion to exclude and no

request for the court to specifically instruct the jury

not to consider the improper argument in their

deliberations. Boles v. State, 19 Ala.App. 184, 186, 95 So.

909 (1923). There was no motion for new trial. Since no

adverse ruling was obtained in the trial court there is

nothing for this court to review. Moore v. State, 48

Ala.App. 719, 722, 267 So.2d 509 (1972).

“The defendant’s trial has been continued

pending a psychological examination of the

said defendant and there is no showing that

the ... (prosecutrix), is unavailable for ex-

amination by the defendant, and further, the

showing is insufficient that the defense rests

exclusively on the testimony of the said Nancy

Bush. Rather, it appears that . . . (the prose-

cutrix) is the primary witness for the prose-

cution, rather than the defendant. It further

appears that the said . . . (prosecutrix) is not

absent from the State of Alabama.”

24a

We uphold the ruling of the trial judge denying the mo-

tion. Here the defense or a material part thereof did not

depend exclusively on the testimony of the prosecu-

trix. At trial the defense was not consent. The appellant

testified that he had never seen the prosecutrix before _

and that, although highly intoxicated on the date the

crime was committed, he never raped anyone as far as

he remembers. The request was properly denied.

We have searched the record and finding no error

prejudicial to the appellant we affirm the judgment of

the trial court.

AFFIRMED.

All Judges Concur.

25a

THE ALABAMA COURT OF CRIMINAL APPEALS

Montgomery, Alabama

Circuit Ct. #CC 77 434

5th Div. 428, LEE Circuit Court

DENNIS ALFONSO WEATHERFORD,

Appellant,

versus

THE STATE,

Appellee.

Dear Sir: This is to advise you that on Mar. 27, 1979,

the Court of Criminal Appeals announced decision of:

application for rehearing overruled in the above stated

cause. No opinion.

Yours truly,

MOLLIE JORDAN, CLERK

26a

OFFICE OF

CLERK OF THE SUPREME COURT

STATE OF ALABAMA

MONTGOMERY

April 20, 1979

Re: 78-435

EX PARTE: DENNIS ALFONSO WEATHERFORD

Petition for Writ of Certiorari to the

Court of Criminal Appeals

Re: DENNIS ALFONSO WEATHERFORD,

Appellant,

versus

STATE OF ALABAMA,

Appellee.

You are hereby notified that the following indicated

action was taken in the above cause by the Supreme

Court today:

X__ Petition for Writ of Certiorari denied.

No opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.