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LARRY PICKETT, ALIAS LARRY BARNES v. STATE OF MISSISSIPPI

MARCH 30, 1983

LARRY PICKETT, ALIAS LARRY BARNES
v.
STATE OF MISSISSIPPI



PATTERSON, BOWLING AND DAN LEE

DAN LEE, JUSTICE, FOR THE COURT:

This is an appeal from the Circuit Court of Pike County wherein Larry Pickett, alias Larry Barnes, appellant, was indicted, tried and convicted for the March 28, 1980, forcible rape of Ruby Marie Hood, a female over the age of twelve. Upon conviction, appellant was sentenced to serve a term of twenty-four years in the custody of the Mississippi Department of Corrections. We affirm.

On March 27, 1980, Ruby Marie Hood, prosecutrix, a nineteen-year-old female, went with a friend, Benevelyn Andrews, to a nightspot in McComb known as the Bird Cage. They arrived at the Bird Cage at approximately 9:30 p.m. While there, the prosecutrix danced with the appellant once or twice.

 At approximately 11:45 p.m., the two girls started to leave the lounge. The prosecutrix stopped to talk with a friend while Benevelyn proceeded outside where she was confronted by the appellant who asked if he could talk with her (Benevelyn's) friend. When the prosecutrix came outside, appellant caught her by the arm. Benevelyn continued walking and informed the prosecutrix she would wait in her car. Appellant pulled the prosecutrix over by a car and then pushed her inside and locked the door. Ray Charles Jackson, who was seated in the back seat of the vehicle, held the door locked while appellant got inside. Appellant tried to kiss the prosecutrix and when she resisted, he slapped her. She began blowing the horn on the automobile, whereupon he slapped her again. Appellant jerked the prosecutrix between the front two seats, whereupon she screamed again only to be slapped by appellant. She then rolled down the car window and stuck one leg out trying to escape therefrom. While in the process of trying to escape, she lost one of her shoes. Appellant warned her not to scream or try to fight him. Otherwise he would kill her. Philamon Moore then entered the car on the driver's side, started the engine and then killed it. Appellant told Moore if he didn't want to be any part of it, he could get out. Moore then started the car again and drove to the Camellian Motel.

 While enroute to the motel, there was some discussion about a $100 bill. Jackson passed the bill to appellant. The prosecutrix did not know what the money was for or what happened to the money thereafter. When they stopped at a traffic light, the prosecutrix screamed again. Appellant told her if she didn't shut up, he would blow her head off. She saw him pulling something from underneath the seat which she believed to be a gun.

 They arrived at the motel at approximately 12:30 a.m. Appellant put his hand around the prosecutrix's throat and told her if she screamed or ran he would kill her. The prosecutrix was pushed into a room. However, Moore did not get out of the automobile and left the scene.

 When they got inside, appellant tried to pull the prosecutrix's clothes off, but she pulled away. The prosecutrix then disrobed and appellant slapped her on the bed. Appellant and Jackson undressed. Jackson then allegedly raped the prosecutrix. At this point, two other men entered the motel room and forcibly had sexual relations with the prosecutrix. Appellant then allegedly raped her. She was also forced to perform various other sexual acts with Jackson.

 After everyone but appellant had left, he began pleading with the prosecutrix not to tell anyone. She dressed and was then taken to another room at the motel where Jackson and the other two men were alseep. Appellant offered to call the prosecutrix a cab; however, she persuaded him to allow her to call Benevelyn. Appellant put $6 in her shoe for gas. The prosecutrix then left the motel room to wait on Benevelyn. It was around daybreak at this time.

 Benevelyn picked up the prosecutrix shortly thereafter. She was crying and shaking. Her hair was messed up and her face beaten up. She was taken to Benevelyn's boy friend's house where her mother was called and told to meet them at the police station. The prosecutrix's mother corroborated Benevelyn's testimony as to her emotional state as well as her physical appearance.

 Dr. Benjamin Cranford, III, testified that the prosecutrix was crying, hysterical, and having difficulty speaking at the time of her examination. His findings were consistent with the history given by the prosecutrix. Valium was prescribed to control her anxiety and hysteria.

 Appellant's witnesses admitted the sexual acts; however, they denied such was done against the prosecutrix's consent. According to Ray Charles Jackson, the prosecutrix was paid for her services. Jackson testified he got the $100 bill out of the prosecutrix's purse and it was only because she had stayed out so late that she became upset. Jackson denied that any violence was involved.

 The jury returned a verdict of guilty as charged, whereupon the appellant was sentenced to serve a term of twenty-four years in the custody of the Mississippi Department of Corrections.

 I. Did the trial court err in permitting testimony as to the prosecutrix's reputation in the community for truth and veracity?

 In rebuttal, the state produced two ministers who testified that the prosecutrix's reputation in the community for truth and veracity was good. Appellant contends such was error because appellant did not directly attack the prosecutrix's character for truth and veracity during the trial.

 In Tiner v. State, 214 Miss. 551, 59 So. 2d 287

 (1952), this Court stated:

 The appellant's attorney also assigns as error the action of the court in permitting the State to prove the general reputation of Wardlaw for honesty and integrity. But no objection was made to that testimony when it was offered. It is only in exceptional cases that this Court will consider assignments of error based upon the admission of testimony which was not objected to at the time it was offered. However, in view of the fact that the same testimony may be offered on a new trial, we do say here that the court should not have permitted the State to prove in rebuttal Wardlaw's general reputation for honesty and integrity under the facts shown by the record. The defendant had not put Wardlaw's reputation in issue. The defendant had merely denied that the alteration in the check had been made prior to the time that he delivered the check to Wardlaw. The main question of fact which the jury had to decide was whether the defendant or Wardlaw had told the truth about the check. And under these circumstances it was highly prejudicial to the defendant to permit the State to bolster Wardlaw's testimony by having the sheriff testify as to his ...


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