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DAVID MICHAEL McFEE v. STATE OF MISSISSIPPI

JULY 22, 1987

DAVID MICHAEL McFEE
v.
STATE OF MISSISSIPPI



EN BANC:

GRIFFIN, JUSTICE, FOR THE COURT:

This case, involving a rape, comes to the Court from the Circuit Court of the First Judicial District of Jones County. Upon conviction, the appellant, David Michael McFee, received a life sentence. We affirm.

I.

 Between 8:15 and 8:30 a.m., on April 26, 1983, Joe Winstead went to the home of his mother-in-law to check on her after she had failed to show up for work. Upon entering the bedroom, Winstead found her dead, lying on

 the bed. He put a cover over the body, then ran out of the room and called the Jones County Sheriff's Department.

 Officer Morris Walker arrived on the scene between 8:45 and 9:00 a.m., and went into the victim's bedroom and, together with several other law enforcement officers, made an investigation at the scene.

 Later Dr. Sergio Gonzalez, a pathologist specializing in forensic pathology, conducted an autopsy. Dr. Gonzales examined the victim's vaginal area where he found evidence of bruising and superficial lacerations at the entrance of the vagina. He stated that this bruising would be consistent with forcible sexual intercourse. He also noted some "defensive" wounds on the victim's arms. Finally, he combed hair from the pubic area, giving this sample to Mrs. James of the Mississippi Crime Laboratory.

 Joe Andrews, a forensic scientist specializing in hair and fiber identification at the Crime Lab, examined the samples. The sample taken from the victim was compared with the sample taken from David Michael McFee. Andrews gave his opinion that some pubic hair taken from the victim's body had the same characteristics as McFee's. Andrews, however, admitted that he could not make a positive identification from a hair comparison; he could only eliminate a person using this technique. The characteristics of the hair found on the body with those of the known sample of McFee hair did not eliminate McFee.

 On May 5, 1983, after he had been taken into custody by the Jones County Sheriff's Department, McFee made his first statement before a Mrs. Craven, Officer Morris Walters, Officer Summerall and Deputy Chief Paul Little. In that statement McFee admitted that he was at the victim's home on April 26, 1983.

 On May 16, 1984, David Michael McFee was formally charged with rape in an indictment returned by the Jones County Grand Jury. Following disposition of several pre-trial motions, several of which will be discussed below, the case was called for trial in Circuit Court on August 8, 1984. Following presentation of the evidence for the prosecution - McFee presenting no evidence in his own defense - the jury returned a verdict finding McFee guilty of rape and imposing the sentence of life imprisonment. Following denial of the usual post-trial motions, McFee has appealed, where the matter is now ripe for review.

 II.

 McFee's first assignment of error is that the instant prosecution is precluded under the double jeopardy clauses of the federal and state constitutions. McFee has reference to the fact that he was originally indicted for the capital murder of the rape victim. Miss. Code Ann. 97-3-19(e) (Supp. 1986). McFee subsequently entered into plea negotiations with the district attorney as a result of which an agreement was reached whereunder the charges against McFee were reduced to murder and the State recommended a sentence of life imprisonment in exchange for which McFee agreed to testify for the prosecution at the trial of his co-indictee, Eric Fuselier. *fn1 The plea bargain was consummated to the extent that the charge against McFee was reduced, the guilty plea was entered and accepted by the circuit court, which imposed upon McFee the sentence of life imprisonment.

 McFee's claim that the instant prosecution is precluded fails on several counts. First, he has not twice been put in jeopardy for the rape. In the capital murder indictment, McFee was charged with the underlying felony of burglary. Nothing in that indictment suggests that McFee committed rape. Insofar as the double jeopardy clauses are concerned, the prosecution was well within its prerogatives in seeking an indictment against McFee on the charge of rape, and, thereafter, bringing the rape case to trial. *fn2 Smith v. State, 429 So.2d 252 (Miss. 1983); Hughes v. State, 401 So.2d 1100, 1103 (Miss. 1981).

 McFee argues further that the plea-bargain agreement reached following the capital murder indictment encompassed all possible charges which might be brought out of the April 26, 1983, incident. McFee contends that the agreement of the prosecution was that, in exchange for McFee's plea and truthful testimony against Fuselier, the prosecution would not only dismiss the capital portion of the murder charge but further bound itself to commence no further prosecution arising out of the April 26 incident.

 To be sure, while there is no constitutional right to enforcement of a plea bargain, Mabry v. Johnson, 467 U.S. 504, 104 S. Ct. 2543, 81 L.Ed.2d 437 (1984), Allen v. State, 465 So.2d 1088 (Miss. 1985), contractual principles of reliance may, under certain conditions, be enforced against the prosecution. Edwards v. State, 465 So.2d 1085 (Miss. 1986); Salter v. State, 387 So.2d 81, 84 (Miss. 1980). Here, however, the prosecuting attorneys wholly denied that there was ever any agreement that McFee would

 not be prosecuted on other charges. More important, the circuit court found as a fact that the terms of the plea-bargain agreement did not include an agreement by the State that it would not prosecute for the rape or any other charges that might arise out of the April 26 incident. As this finding is supported by substantial, credible ...


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