BEFORE WALKER, HAWKINS AND PRATHER
PRATHER, JUSTICE, FOR THE COURT:
The habitual offender sentencing statutes are the basis for a constitutional separation of powers challenge in this criminal appeal from the Circuit Court of Walthall County. Obie D. Washington, appellant, was convicted of rape and sentenced as a recidivist, in a bifurcated hearing, to thirty years in the custody of the Mississippi Department of Corrections. He appeals asserting that:
(1) The court erred in overruling the defendant's motion to quash the indictment, on the grounds that the said indictment was procured in violation of section 1 and section 2 of Article 1 of the Constitution of the State of Mississippi, and in violation of the rights of the defendant under the Sixth Amendment of the Constitution of the United States.
(2) The court erred in refusing the defendant's jury instruction No. D-9 which he claims was violative of his Sixth Amendment right under the federal constitution to call and confront his own witnesses.
(3) The court erred in permitting the state to introduce the evidence of prior convictions of the defendant and hearsay evidence about the defendant's reputation in the community for truth and veracity.
On the morning of June 5, 1982, just before 8:00 a.m., Annette Holmes, a 25 year old victim of cerebral palsy, was raped near her home.
Holmes was taken to the Walthall County General Hospital where samples of her hair and blood were taken, along with internal and external vaginal swabs.
Annette identified her attacker as Obie D. Washington, who was charged with forcible rape of a female over the age of twelve (12) years in violation of Miss. Code Ann. 97-3-65 (2) (1984 Supp.) and as a habitual criminal within the meaning of Miss. Code Ann. 99-19-81 (1984 Supp.).
Prior to his trial, Washington moved to quash the indictment on both Mississippi and U.S. Constitutional grounds. The motion was overruled. He also moved to have the semen sample, that was removed from the victim, made available for independent testing, but was informed by the district attorney that the entire quantity had been used in testing by the Mississippi Crime Lab.
At trial, Annette Holmes was the only eyewitness to testify. Five other witnesses, all residents of Cato Street, testified that they saw Obie D. Washington on their street on the morning of June 5, 1982 at times ranging from 5:00 a.m. to 7:00 a.m. There was testimony given on Washington's behalf, all from members of his family, that he
was at home from 1:00 a.m. Saturday, June 5, until the police came to arrest him.
Larry Turner, a forensic serologist at the Mississippi Crime Lab, testified that the vaginal swabs taken from Annette Holmes contained seminal fluid from a person of non-secretor status. He testified that a blood sample taken from Obie D. Washington indicated that Washington was a non-secretor. Finally, Turner testified that twenty percent of the population are non-secretors.
Obie D. Washington testified on his own behalf, and on cross-examination was questioned about his prior convictions. The defense counsel made a timely objection which was overruled. After the defense rested, the state put on rebuttal evidence, again over the objections of defense counsel. Chief of Police Lavon Magee testified that he knew of Washington's reputation for truth and veracity and that that reputation was bad.
Washington was found guilty by a unanimous jury and, in a bifurcated sentencing hearing, was sentenced to 30 years in the state penitentiary.
These facts give rise to the following assignments of error.
Did the court err in overruling the defendant's motion to quash the indictment on the grounds that the said indictment was procured in violation of section 1 and section 2 of Article 1 of the Constitution of the State of Mississippi, and in violation of the rights of the defendant under the Sixth Amendment of the Constitution of the United States?
Appellant challenges the constitutionality of Mississippi Uniform Criminal Rule 6.04 and Miss. Code Ann. 99-19-81. For consideration of this issue ...