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ALBERT SHAVERS v. STATE OF MISSISSIPPI

AUGUST 22, 1984

ALBERT SHAVERS
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, ROBERTSON AND SULLIVAN

SULLIVAN, JUSTICE, FOR THE COURT:

Albert Shavers was convicted in the Circuit Court of Rankin County, Mississippi, for the forcible rape of one Mrs. Willie Mae Spann in violation of Mississippi Code Annotated 97-3-65 (2) (Supp. 1983). Upon his conviction, the jury unanimously agreed that he should be sentenced to life imprisonment. Shavers appeals.

Appellant assigns three errors:

 1. The trial judge erred in admitting into evidence testimony of three witnesses which had not been furnished appellant in compliance with an order of production.

 2. The lower court erred in denying the appellant a directed verdict at the close of the state's case in chief.

 3. The lower court erred in denying appellant's motion for mistrial due to improper closing argument.

 About 5:30 or 6:00 p.m. on the afternoon of July 6, 1982, Mrs. Spann, an eighty-three year old black female, was accosted in her home by a black male who had broken into the house. She was wrestled down onto her bed and sexually assaulted. After the rape, her assailant took some change from a glass jar in her room and fled the house. Bernice Montgomery, niece of the victim, arrived at the house after the assault. When her aunt could not identify her assailant, Bernice Montgomery went outside and inquired of the crowd whether anyone had been seen coming from the house. She was informed that Shavers had been seen coming from the house. When the police arrived, they interviewed both Mrs. Spann and her niece. Mrs. Spann again could not identify her assailant and gave only a general description. After conversing with Mrs. Spann and the niece, the officers went to the Shavers' residence, picked the appellant up and returned him to the Spann home where he was viewed by Mrs. Spann. The best identification the victim could give even at this point was that appellant looked just like her assailant. Even at trial, because of her failing eyesight, Mrs. Spann could not identify Shavers as the assailant. There was blood on the bedspread at the Spann home, and moist blood on the shorts worn by the appellant at the time he was arrested.

 Appellant's defense was that of alibi. He testified that at the time of the rape he had been playing ball with his cousin, Darrell Smith, and some ten other boys. He left the ball game about 6:30 and went to a laundromat, where he played some electronic games and then he went home. He testified that he had not been to the Spann house in some eleven years (he was 20 years old at the time of the trial), and that he had not raped the victim.

 Medical testimony showed the victim had vaginal injuries consistent with rape, but no other bodily injuries,

 bruises or contusions were found. The blood both on the bedspread and on appellant's shorts was human blood but could not be typed. Appellant testified in explanation of the blood on his shorts that he was suffering from syphilis and that accounted for the blood. Medical testimony was introduced into evidence that it would be most unusual for someone suffering from syphilis to bleed in his underwear without having a visible sore. Examination of the appellant by the police officers at the time of his arrest did not reveal any visible sores consistent with syphilis on the body of the appellant.

 At the trial, the witness Davis was called by the state on direct examination. The state had failed to produce this witness's name as required by a production order under Uniform Circuit Court Rule 4.06 and defense counsel objected to the introduction of this witness on those grounds. The trial court sustained the objection, and the witness was ordered to stand down. At the conclusion of the state's case, appellant's counsel made a motion for a directed verdict which was overruled. Thereafter, the appellant put on two alibi witnesses and rested.

 In rebuttal, the witness Davis stated that at about 5:30 p.m. she saw the appellant get on a bicycle, leave the basketball game, and ride down the road toward Mrs. Spann's house. She watched him until he was out of sight. She further stated that the appellant returned on the bicycle about 20 or 30 minutes later to the basketball game.

 Also on rebuttal for the state, Jimmy Marion, aged 15, testified that the appellant tried to borrow a quarter and Jimmy Marion's bicycle but Marion refused. A little later Marion noticed that his bicycle was gone and then he saw Shavers coming from Mrs. Spann's house on the bicycle. He further testified that upon his return to the basketball game Shavers was giving quarters to people to hold.

 Tony Marion, aged 13, also called by the state in rebuttal, testified that when the appellant got on the bicycle he followed him around the curve and saw the ...


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