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02/24/95 EX PARTE STATE ALABAMA (RE GREGORY DONALD

February 24, 1995

EX PARTE STATE OF ALABAMA (RE: GREGORY DONALD FLOYD
v.
STATE)



PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS. (Calhoun Circuit Court, CC-92-974 and -975, Court of Criminal Appeals, CR-92-1310). Joel Laird, Jr., Trial Judge.

Rehearing Denied April 7, 1995. Released for Publication August 21, 1995.

Hornsby, C.j., and Shores, Houston, Ingram, Cook, and Butts, JJ., concur. Maddox and Kennedy, JJ., Dissent.

PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

Hornsby, C.J., and Shores, Houston, Ingram, Cook, and Butts, JJ., concur.

Maddox and Kennedy, JJ., Dissent.

MADDOX, JUSTICE (dissenting).

We granted the writ in this case to review a holding by the Court of Criminal Appeals that the defendant timely objected to the trial court's failure to instruct the jury on the definition of "forcible compulsion." This Court, upon further review, decided to quash the writ as improvidently granted. I respectfully Dissent. I would hold that the defendant, not having objected before the jury retired, as required by Rule 21, Ala. R. Crim. P., waived any objection he might have had.

The facts show that although the defendant did not object to the trial court's failure to instruct the jury on the definition of "forcible compulsion" before the jury retired to consider its verdict, he did specifically ask the trial Judge to so instruct the jury when the jurors returned after about an hour of deliberations. Consequently, the issue was brought to the attention of the trial court before a verdict was returned and in time for the trial court to take corrective measures.

The defendant, Gregory Floyd, was convicted of first degree sodomy under § 13A-6-63(a)(1), Ala. Code 1975, and first degree sexual abuse under § 13A-6-66(a)(3). He was sentenced to life imprisonment on the sodomy conviction and to 10 years' imprisonment on the sexual abuse conviction. The Court of Criminal Appeals reversed the sodomy conviction and affirmed the sexual abuse conviction. We granted the state's petition, to consider whether the defendant preserved for review the question whether the trial court erred in failing to instruct the jury on forcible compulsion as an element of sodomy.

The facts are set out in the Court of Criminal Appeals' opinion as follows:

"The victim, J.B., a five-year-old female, was spending the night in the appellant's house. Present in the appellant's house were the appellant; his wife, Shannon; their three young children, who were friends of J.B.; and J.B. The appellant was 25 years of age at the time of the incident. During the night, Shannon became ill and went to the hospital for emergency treatment, leaving the appellant with the children temporarily. According to J.B., some time that night, the appellant took her from the couch where she was sleeping and carried her to his couch, where he removed her pants and panties and then licked her vagina and put his finger in her vagina. J.B. testified that when the appellant inserted his finger into her vagina, it hurt and caused her to bleed. The next morning, she complained to Shannon and told Shannon what had happened. She was still bleeding. She was taken to the hospital for an examination. The doctor found a tear in her vaginal wall, and testified that it was consistent with an object such as a finger having been inserted into her vagina. J.B. also told the doctor and a police officer, Debbie Davis, what the appellant had done. J.B.'s clothing was collected from the appellant's residence, and blood stains were discovered on a pair of her panties and on her T-shirt."

The indictment in the case stated, in part:

"Gregory Floyd . . . did, on about, to-wit, May 26th, 1992, engage in deviate sexual intercourse with [J.B.] by forcible compulsion in violation of Section 13A-6-63 of the Alabama Criminal Code against the peace and dignity of the State of Alabama."

The language of the indictment tracks the language of ยง 13A-6-63(a)(1). However, the trial court, when instructing the jury on the sodomy charge, followed the ...


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