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JULY 24, 1985




The Circuit Court of Grenada County found the appellant, Everett Carter, guilty of aggravated assault and sentenced him to sixteen (16) years in the custody of the Mississippi Department of Corrections. He appeals this conviction and sentence, and we reverse and remand.

On September 25, 1983, Mrs. Willie Mae Tanner, a 73-year-old woman who lived alone in Grenada, surprised

 an intruder in her kitchen. The intruder, whom she later described as a heavy set black male, grabbed her from behind as she entered her kitchen. He began to choke her, in the process knocked her glasses off, and then ordered her to remove her pants and her panties. During this time he was holding a knife to her throat. After she removed her pants and her underwear, the assailant ran the knife up her vagina. He cut her there, and also made about a foot long gash in her leg. He threw her to the floor, hit her on the head with two different cast iron skillets, and stomped up and down on her back and stomach. He also broke a glass over her head. She begged her attacker not to kill her, and offered him money if he would leave her alone. The intruder then carried Mrs. Tanner to her living room, where he took money that she offered him, and left.

 The attack left Mrs. Tanner with multiple injuries. These included: cuts to the front of her neck, and a long cut down her right leg; bruises and cuts around the skull and facial area; nine broken ribs; and a large bruise on her abdomen which resembled a footprint. Mrs. Tanner's doctor did not examine her vaginal area. The injuries which Mrs. Tanner received required approximately thirteen (13) days of hospitalization.

 On October 1, 1983, Grenada County Deputy Sheriff Robert Shields received a call to go to a local cabinet shop owned by Paul Wilburn. Mr. Wilburn had complained that Everett Carter, a young man who lived nearby, had been going through an ice box which was located in the back of the shop. Deputy Shields first went to Mr. Wilburn's cabinet shop, and then to the home of Carter's grandparents. Shields picked up Carter at his grandparents' home, and took him to the place of business of a justice court judge in Grenada County. There, Shields signed a general affidavit which stated that Carter "Did willfully and unlawfully disturb the peace by going to the shop belonging to Paul Wilburn on Sweethome Road." The judge then signed a warrant charging Carter with disturbing the peace. He was arrested and taken to the Grenada County jail.

 Since Carter could not make bond, he remained in jail until October 3, 1983. On that day, his grandparents signed an affidavit and application for commitment for mental treatment. The affidavit alleged that Carter had trespassed on Paul Wilburn's property and also at various eating establishments where he annoyed the customers and manager. It also alleged that he tore his clothes up, and that he urinated in his closet. Further, it alleged that he had attempted to hit his grandfather. Upon this application,

 Carter was transported to Region 6 of the Mental Health Center, Greenwood, Mississippi. A clinical psychologist, Dr. John M. Fitch, and a medical doctor, Dr. Robert McKinley, evaluated Carter. They did not recommend involuntary commitment, but behavior management training. They did allege that Carter appeared to be mildly retarded, although there was no indication of psychosis. Everett Carter was subsequently returned to the Grenada County jail.

 Also on October 3rd, Carter caught the attention of Deputy Sheriff C. H. Lovorn. Deputy Lovorn was investigating the assault on Mrs. Tanner, and he noticed that Carter fit the general description of the attacker. Deputy Lovorn then checked the jail docket, and discovered that Everett Carter was in jail on a disturbance charge. He also discovered the word "mental" written on the charge on the jail docket. Lovorn took a photograph of the defendant, with the intention of showing it to Mrs. Tanner for purposes of identification. The photograph shows Everett Carter as a young heavy set black male. It also shows him with his mouth open and his tongue partially sticking out. The other photographs which were included in the lineup also show young black males, but none so heavy set as Carter. Detective Lovorn took the set of pictures to Mrs. Tanner in her hospital room. While Mrs. Tanner did not make a positive identification of Carter, she picked out his picture from the group of pictures and indicated that he could have been her attacker. Everett Carter was then charged with the aggravated assault of Willie Mae Tanner.

 On October 4, 1983, Deputy Sheriff Donald E. Lawrence of Grenada County began talking to Everett Carter about the crime. He first gave Carter his Miranda warning, which Carter signed. Lawrence was of the opinion that Carter fully understood his rights. Lawrence first began talking to Carter about the incident for which he was arrested. Then, Lawrence asked him why he went into "the white lady's house." Carter then made a statement to Lawrence and to C. H. Lovorn, who was also present. In the statement, Carter admitted that within the last few weeks, he had entered a house by way of a back door which was cracked open. He stated that while in the house, he was discovered by "an old white woman Caucasian." He stated that he then became frightened, and ran into the woman on his way out of the house. He also stated that he picked up some change which he found in the house on his way out. According to Carter, he ran away from the woman because she was holding a knife. He said that he stepped on the woman after he knocked her down, but that he did not remember cutting her with a knife and did not think that he did. The statement does not

 represent an exact quote from Everett Carter, but a paraphrasing of his statement to Deputy Lawrence.

 Carter was brought to trial on January 30, 1984. On January 26, 1984, Carter's attorney had subpoenaed Dr. Robert McKinley from the Mental Health Center at Greenwood to testify in the trial. Dr. McKinley was not present at the trial, and Carter's attorney moved for a continuance to compel his presence. His attorney told the court that Dr. McKinley's testimony was necessary in order to assist in the defense of insanity, and also to testify about drugs that the defendant was taking, and their possible effect on his ability to give a statement to the sheriff. Counsel for the state submitted to the court a letter written by Dr. McKinley, in which he evaluated the defendant's condition. The letter stated that Dr. McKinley was of the opinion that Carter was competent to stand trial, and was responsible for his actions. According to Dr. McKinley, Carter possessed "borderline intellectual functioning." Dr. McKinley also alluded to probable psychosis on the part of the defendant, but, in McKinley's opinion, that psychosis had nothing to do with the crime. The court overruled the defendant's motion for a continuance.

 A motion by the defendant to suppress his statement was heard in the judge's chambers prior to trial. In addition to various law enforcement officers previously mentioned, the court took testimony from Lewis Thompson, Deputy Sheriff and Administrator of the Grenada County jail. Johnson testified that he had regularly administered two prescription drugs to Everett Carter during the time he was incarcerated. Those two drugs were Cogentin and Haldol. The prescriptions were filled and the drugs administered after Carter's visit to the Mental Health Center on October 3rd. The court also heard from Jerry Lucius, a law enforcement officer for the City of Grenada. Officer Lucius interviewed Willie Mae Tanner at Grenada County Hospital shortly after her attack. It was he who received the description from Mrs. Tanner of her attacker as a heavy set black male.

 Carter's grandparents also testified at this hearing. His step-grandfather, Rev. John Evans, testified that the 22-year-old Carter had been living with them for approximately ten (10) months. Carter previously lived in Detroit with his mother, where he had been institutionalized. Evans testified that Carter's mental deficiency manifested itself in an insatiable appetite, and that they had problems with Carter stemming primarily from his desire to eat. Evans ...

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