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04/14/95 REX ALLEN PHILLIPS v. STATE

April 14, 1995

REX ALLEN PHILLIPS
v.
STATE



Appeal from Houston Circuit Court. (CC-93-1019 and 1020). Michael Crespi, TRIAL JUDGE.

Rehearing Denied June 16, 1995. Rule 39(k) Motion Denied June 16, 1995. Certiorari Denied August 18, 1995. Released For Publication February 17, 1996.

Cobb, Judge. All the Judges concur.

The opinion of the court was delivered by: Cobb

COBB, JUDGE

This case was originally assigned to another Judge on the Alabama Court of Criminal Appeals. It was reassigned to Judge Cobb on January 17, 1995.

Rex Allen Phillips, the appellant, was convicted of two counts of first degree rape of a "female who is less than 12 years old," a violation of Ala. Code 1975, § 13A-6-61(a)(3). He was sentenced to life in the penitentiary without the possibility of parole. He raises three issues on appeal.

I

The appellant confessed to twice having had sexual intercourse with H.N., the nine-year-old victim. C.R. 92. The appellant contends that this confession was involuntary because, he says, he did not have the mental capacity to understand the consequences of waiving his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), because he was intoxicated when he gave the statement, and because he was not re-Mirandized immediately before giving the statement.

Officer Dale Merritt, an investigator with the Houston County Sheriff's Department, testified that he took two statements from the appellant. The first statement was taken in Merritt's office before the appellant was arrested. Before making this statement, the appellant was advised of his rights pursuant to Miranda and he voluntarily signed a waiver of rights form. Merritt determined that the appellant could not read very well, even though the appellant stated that he had a seventhgrade education. Merritt then read each line of the waiver of rights form to the appellant and ascertained that he understood its meaning before the appellant signed the form. The appellant did not say or do anything to indicate to Merritt that he did not understand his rights as they were read to him. The appellant was arrested after giving this statement. However, because the tape recorder used to record the statement malfunctioned, a second statement, which is the subject of appellant's objection, was taken and recorded a few minutes after the first. Before giving this statement, the appellant acknowledged that he had already been advised of his Miranda rights, that he understood these rights and that he voluntarily waived them. This statement was transcribed and introduced at trial.

"'We have often held that "the fact that a defendant may suffer from a mental impairment or low intelligence will not, without other evidence, render a confession involuntary.'" Dobyne v. State, [Ms. CR-91-1840, April 15, 1994] 639 So. 2d 587 (Ala. Crim. App. 1994) (quoting Youngblood v. State, [Ms. CR-92-1185 December 3, 1993] ___ So. 2d ___, ___ (Ala. Cr. App. 1993) aff'd [No. 1930684, January 20 1995]. See Cleckler v. State, 570 So. 2d 796, 801 (Ala.Cr.App. 1990) ("the appellant could have knowingly and intelligently waived his rights, even though he was classified as trainable mentally retarded"), and the cases cited therein. "'Whether a confession or inculpatory statement was knowingly and voluntarily made is a question of law and a proper determination for the trial Judge.' Agee v. State, 465 So. 2d 1196, 1200 (Ala.Crim.App. 1984)." State v. Caldwell, 611 So. 2d 1149, 1151 (Ala.Cr.App. 1992), cert. denied, 114 S. Ct. 284, 126 L. Ed. 2d 234 (Ala. 1993),

"'There is no requirement that a suspect be informed of his constitutional rights before each interrogation in a series of interrogations. C. Gamble McElroy's Alabama Evidence § 201.09 (4th ed. 1991). A determination of whether Miranda warnings must be repeated should be made on a case-by-case basis. . . .

"....

"....Because the time between the reading and waiving

of the appellant's Miranda rights and the subsequent obtaining of evidence was not excessive, and because no intervening act or circumstance occurred that would have required the renewal of the appellant's Miranda warnings, no error occurred. Moreover, the State introduced evidence that the appellant had been reminded of his Miranda warnings before both cited instances."

Johnson v. State 648 So. 2d 629, 637-38 (Ala.Crim.App. 1994) citations omitted. This law applies to the present case.

The record does not support the appellant's contention that he was intoxicated when he gave his statement to Officer Merritt. II

The appellant contends that the Officer Merritt failed to "mark" the box containing the sheets that were on H.N.'s bed at the time of the rape "in any way to verify that [the box] would not be tampered with, or [to] distinguish[] this box from any other box he may have sent to the [Department of Forensic Sciences for testing]." Appellant's brief at page 9. The appellant argues that the chain of custody was insufficient because there was no assurance that the sheets received by the Department of Forensic Sciences were removed from H.N.'s bed, or that they were in substantially the same condition as when they were packaged and shipped.

Merritt testified that he removed the sheets from H.N.'s bed, photographed them, sealed them in a box, and sent the box via United Parcel Service (UPS) to the forensics laboratory in Montgomery. Katherine McGeehand, an employee of the Department of Forensic Sciences, testified that she received the sheets sent by Merritt "completely sealed up" in a box delivered by UPS. R. 144.

There was no suggestion at trial that the sheets had been tampered with. "Circumstantial evidence is generally sufficient to authenticate the item sought to be entered into evidence, except when there appears to be evidence that the item of evidence was tampered with or that a substitution was made while the item was in the custody of the link who has failed to appear and testify." Ex parte Holton, 590 So. 2d 918, 920 (Ala. 1991). "A sealed envelope is adequate circumstantial evidence to establish the handling and safeguarding of the item to treat the evidence as authenticated. " Gray v. State, 600 So. 2d 1076, 1079 (Ala.Cr.App. 1992) (citing Ex parte Holton, 590 So. 2d 918, 920 (Ala. 1991)).

III

The appellant contends that the State failed to prove a prima facie case of rape in the first degree. Under § 13A-6-61(a)(3), a male commits the crime of rape in the first degree if "he, being 16 years or older, engages in sexual intercourse with a female who is less than 12 years old."

The appellant stated that he "had sex in the front room" with H.W. and then shortly thereafter H.N. got "her damn grease out" and for a second time they "started f______g right there in [H.N.'s] bedroom." R. 201-02. "Under the appellant's own confession he is guilty of the offense charged, Huggins v. State, 41 Ala.App. 548, 142 So. 2d 915, cert. denied, 273 Ala. 708, 142 So. 2d 918 (Ala. 1962) consent being no defense to a prosecution under our carnal knowledge statute. Powell v. State, 53 Ala.App. 30, 297 So. 2d 163 (1974)." Taylor v. State, 361 So. 2d 1189, 1192 (Ala.Cr.App. 1978). *fn1 His confession also corroborates H.N.'s testimony, which is summarized below. "'A defendant's voluntary confession may . . . be considered corroborative evidence authorizing a conviction. Snoddy v. State, 75 Ala. 23 (1883); Jacks [v. State, 364 So. 2d 397 (Ala.Cr.App.), cert. denied, 364 So. 2d 406 (Ala. 1978).]' Craig v. State, 376 So. 2d 803, 806 (Ala.Cr.App. 1979), writ denied, 376 So. 2d 807 (Ala. 1979)." Rodgers v. State, 554 So. 2d 1123, 1124 (Ala.Cr.App. 1989).

Admittedly the nine-year-old victim was a poor witness for the prosecution. In answering questions, she repeatedly ...


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