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JOHNNY DAVIS A/K/A JOHNNY LUCKETT v. STATE OF MISSISSIPPI

JULY 22, 1987

JOHNNY DAVIS A/K/A JOHNNY LUCKETT
v.
STATE OF MISSISSIPPI



BEFORE DAN LEE, PRATHER AND ROBERTSON, JJ.

PRATHER, JUSTICE, FOR THE COURT:

In the Circuit Court of Hinds County, Johnny Davis a/k/a Johnny Luckett was found guilty of sexual battery and was sentenced as a recidivist to thirty years without probation or parole in the custody of the Mississippi Department of Corrections. From that conviction and sentence, Davis

appeals assigning as error:

 (1) The trial court erred in refusing to suppress the in-court identification of the appellant by the victim.

 (2) The verdict is against the overwhelming weight of the evidence.

 (3) The sentence of thirty years in prison without chance for probation or parole is violative of the United States and Mississippi Constitutions.

 I.

 At approximately 1:00 a.m., October 28, 1984, at her home in Jackson, Mississippi, 42 year-old Delia Smith awoke to a "creeping noise" in the hall outside her bedroom. Upon investigation, Ms. Smith encountered Johnny Davis a/k/a Johnny Luckett who indicated he wanted to perform an act of oral sex. A struggle ensued landing Smith and Davis on the living room couch.

 After completing an act of oral sex on Mrs. Smith, Davis allegedly penetrated Smith's vagina with his penis. During the course of this penetration, Ms. Smith procured a brass bird statue with which she beaned Davis on the head numerous times. These blows caused Davis to leave a trail of blood beginning with Ms. Smith's gown and ending at the window he used as an exit. Ms. Smith went next door and called the police.

 When the police arrived, they found Ms. Smith in her front yard wearing her night gown. After questioning, Ms. Smith was taken to the Mississippi Baptist Medical Center where she was examined by Dr. Charles E. Grissom.

 Before taking Ms. Smith to the hospital to be examined, the accompanying police officers became aware that a man fitting the description of Ms. Smith's attacker was being treated in the Mississippi Baptist Medical Center emergency room for head wounds. After Ms. Smith was examined in the same emergency room, the officers escorted Ms. Smith to the area where the suspect was being treated. Ms. Smith positively identified the suspect, Johnny Davis, as her attacker.

 Davis was subsequently arrested and charged with sexual battery in violation of Miss. Code Ann. 97-3-95. Davis was indicted as a recidivist under Miss. Code Ann. 99-19-81 and was tried November 6, 1985.

 During his trial, Davis was identified in court by Ms. Smith. In addition, a seriological fluid expert testified Davis' blood type matched the blood found on Ms. Smith's gown, but did not match Ms. Smith's blood type. The jury returned a unanimous verdict of guilty, and Davis was sentenced to serve a term of thirty years ...


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