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DONALD DEWAYNE DAVIS v. STATE OF MISSISSIPPI

APRIL 27, 1983

DONALD DEWAYNE DAVIS
v.
STATE OF MISSISSIPPI



BEFORE PATTERSON, BOWLING AND DAN LEE

DAN LEE, JUSTICE, FOR THE COURT:

This is an appeal from the Circuit Court of Hinds County wherein Donald Dewayne Davis was indicted, tried and convicted for the February 6, 1981, armed robbery of Charlee Prince. Upon conviction, Davis was sentenced to a term of thirty years in the custody of the Mississippi

Department of Corrections. Aggrieved of his conviction and sentence, Davis appeals to this Court. We affirm.

 On February 6, 1981, Charlee Prince, a truckdriver from Los Angeles, California, was staying at the Tarrymore Motel in Jackson with her husband while repairs were being made to their truck. At approximately 9:00 p.m., Mrs. Prince left the motel to purchase some liquor and groceries. Upon exiting a liquor store on Gallatin Street, Mrs. Prince heard a car door slam. She looked up, whereupon a black man, subsequently identified as the appellant, asked her about a club. Mrs. Prince informed appellant she was not from Jackson and began to unlock the door to her automobile. At this point appellant placed a gun in Mrs. Prince's side, unlocked the door to her vehicle and shoved her into the back seat. Appellant entered the vehicle and then told Mrs. Prince to unlock the other door, whereupon a second man entered the vehicle.

 Once all three occupants were inside the vehicle, appellant took Mrs. Prince's purse, dumped everything out, and took $80 which was found therein. She was then instructed to lie down on the back seat where appellant allegedly raped her while the second man drove the vehicle.

 The car was subsequently stopped on a dirt road, whereupon the two men searched through the trunk and then reentered the vehicle and drove to the Presidential Hills Subdivision. They stopped in front of a house where appellant exited the car and reentered shortly thereafter with another pistol. Appellant inquired of Mrs. Prince as to her willingness to prostitute for him to which she readily agreed, out of fear. Appellant asked her for a picture; however, Mrs. Prince informed him she did not have one. He then rummaged through her purse, taking various documents of identification.

 The car was then driven to a park inside the subdivision where appellant drank some of the liquor and likewise forced Mrs. Prince to drink with him. Appellant was wearing a jacket which resembled a policeman's jacket and was equipped with a badge and a pair of handcuffs. The handcuffs, badge and identification documents taken from Mrs. Prince were subsequently recovered in a search of appellant's home.

 Appellant agreed to release Mrs. Prince if she promised to meet him the following day. Mrs. Prince agreed to his demands. They drove to the Red Rooster Convenience Store where appellant told her to get out of the car and walk to the other side and kiss him goodbye like she was his lady. Appellant

 then returned $10 of her money so she could buy groceries. Mrs. Prince left and returned to the Tarrymore Motel where she informed her husband of what had transpired.

 Appellant and her husband left the motel, trying to find the house in Presidential Hills. They waved a police officer down in the area, whereupon other units responded to the call. Mrs. Prince was very upset, crying and shaking. The officers split up trying to locate appellant's house, but to no avail. Mrs. Prince was then taken to the hospital for an examination.

 Appellant's version of the events surrounding the evening were somewhat different. Appellant testified he was approached by Mrs. Prince at approximately 8:45 p.m. on February 2, 1981, at the corner of Poindexter and Lynch Streets and asked if he was interested in purchasing marijuana. Appellant informed her he would make the purchase but had to go to his house for the money. Mrs. Prince offered to take him to his house. While at his house, the two had a drink, then he sampled the drug and then they engaged in sexual intercourse at her request. When Mrs. Prince went into the bathroom, appellant went through her purse and removed the $80 he had paid for the drugs. While in the process, some of her identification fell onto the floor which he pushed under the bed when she returned from the bathroom. Mrs. Prince then dropped appellant off at the Red Rooster where she asked him to kiss her. She also told appellant to get in touch with her at the motel to purchase additional marijuana. According to appellant, Mrs. Prince's charges were her way of getting even with him after he ripped her off in the drug deal.

 The jury returned a verdict of guilty as charged. Appellant was thereafter sentenced to serve a term of thirty years in the custody of the Mississippi Department of Corrections.

 I. Did the trial court err in admitting evidence of crimes other than that as charged in the indictment?

 Appellant contends he was denied his right to a fair trial by the interjection of evidence as to the rape of Mrs. Prince while he was on trial for armed robbery.

 As a general rule, testimony in a criminal trial should be confined to the charge for which an accused is on trial and the prosecution should not be allowed to aid the proof against the accused by showing he committed other offenses. Eubanks v. State, 419 So. 2d 1330 (Miss. 1982); Black v. State, 418 So. 2d 819 Miss. 1982); Tucker v. State, 403 So. 2d 1274 (Miss. 1981); Wilborn v.

 State, 394 So. 2d 1355 (Miss. 1981); Massey v. State, 393 So. 2d 472 (Miss. 1981); and Gardner v. State, 368 So. 2d 245 (Miss. 1979). However, there are exceptions to this rule as stated in Woods v. State, 393 So. 2d 1319 (Miss. 1981):

 In Gray v. State, 351 So. 2d 1342 (Miss. 1977), the Court said:

 . . . It is well settled in this state that proof of a crime distinct from that alleged in an indictment is not admissible against an accused. There are certain recognized exceptions to the rule. Proof of another crime is admissible where the offense charged and that offered to be proved are so connected as to constitute one transaction, where it is necessary to identify the defendant, where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged, where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge. See Smith v. State, 223 So. 2d 657 (Miss. 1969), cert. denied, 397 U.S. 1030, 90 S.Ct. 1274, 25 L.Ed. 2d 542 (1970); Cummings v. State, 219 So. 2d 673 (Miss. 1969); cert. den. 397 U.S. 942, 90 S.Ct. 954, 25 L.Ed.2d 122 (1970). (393 So. 2d at 1325).

 See also Saik v. State, 387 So. 2d 751 (Miss. 1980).

 The rule concerning the admissibility of evidence as a part of the res gestae was amply stated in Anderson v. State, 171 Miss. 41, 156 So. 645 (1934), wherein this Court stated:

 The proof of another offense is admissible where the main transaction cannot be brought out without showing such other offenses. Simmons v. State, 165 Miss. 732, 141 So. 288, and Mackie v. State, 138 Miss. 740, 103 So. 379, and the authorities therein cited. (171 Miss. at 47, 156 So. at 646).

 In Johnson v. State, 416 So. 2d 383 (Miss. 1982), we held that evidence of burglary and attempted rape were admissible in a capital murder prosecution as a part of the res gestae

 where defendant was charged with the killing of a police officer as opposed to felony murder. Where evidence is admissible as a part of the res gestae, it will not be excluded because it may tend to inflame the minds of the jury or would tend to indicate the commission of another crime. Gray, v. State, 375 So. 2d 994 (Miss. 1979).

 While the state first elicited evidence of sexual intercourse between appellant and Mrs. Prince, defense counsel was first to label the act as rape. In any event, such evidence was clearly admissible as a part of the res gestae, the two crimes being so interrelated as to constitute one transaction. Therefore, we find no error in the admission of the evidence concerning the rape of Mrs. Prince.

 II. Did the trial court err in overruling appellant ' s objection and subsequent motion for mistrial when it allowed the state to introduce improper direct testimony from a rebuttal witness for the alleged purpose of impeaching a defense witness by showing he had made a prior inconsistent statement?

 On cross-examination of defense witness Musharn Davis, he was shown a written statement dated February 10, 1981, at which time he identified his signature thereon. Davis asserted he remembered talking to officer Patsy Knowles on February 10 but denied that he told officer Knowles about a conversation with his brother (appellant) concerning a white lady. Davis ' statement was thereupon marked as an exhibit for identification only.

 The state offered officer Knowles as a witness in rebuttal to impeach the testimony of Musharn Davis by showing that he had made a prior inconsistent statement. The trial court, in ruling on the admissibility of such testimony, held that officer Knowles could be examined as to whether or not Musharn Davis gave her a written statement which implicated appellant in this crime, but could not be examined as to the particular details of the statement.

 Knowles thereafter took the witness stand as a rebuttal witness for the state, whereupon the following events transpired:

 Q. At that time, did Musharn Davis give to you a statement?

 A. Yes, he did. He gave me an oral statement and then a written statement. Q. At that time, ...


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