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L. V. JOHNSON v. STATE OF MISSISSIPPI

AUGUST 05, 1987

L.
V.
JOHNSON v. STATE OF MISSISSIPPI



BEFORE HAWKINS, P.J.; ROBERTSON AND ANDERSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

Excessive consumption of alcohol and other drugs has long been a source of man's inhumanity to man. Today's case is but another anecdote to the sad truth of that fact, for here we find a young man in his mid-twenties, after "drinking and smoking dope," brutally attacking and raping a 76 year old widow who lived alone.

 Notwithstanding our disgust at Defendant's conduct, we have dispassionately reviewed each assignment of error he has tendered. Each refers to a matter where the trial court either acted correctly or well within its discretionary authority. We affirm the conviction of rape and sentence of life imprisonment without eligibility for parole, for Defendant has been shown an habitual offender.

 II.

 A.

 In July of 1985 Mrs. Eddie Lee Eubanks, a widow, lived alone in Philadelphia, Mississippi. At approximately 3:00 a.m. on Sunday morning, July 7, 1985, Eubanks awoke to go to the bathroom. When she returned to her bed, she discovered a man in bed with her who held a knife to her throat and raped her. Her attacker then instructed her to take him to any money she had. He took money from a coin purse in the kitchen and took a piggy bank from the living room. When Eubanks led him to her guest bedroom after he had inquired about a purse she always carried, the man raped her again. *fn1 Finally, the attacker got Eubanks' butcher knife, ordered her to open her door for him to leave, and threatened to come back and kill her if she screamed. He left with her two telephones, purse, butcher knife, flashlight, and piggy bank.

 After her assailant's departure, Eubanks put on some clothing, crawled and walked first to the house of a neighbor whom she was unable to awaken, and finally went to the home of another neighbor who took Eubanks back to her own home and called the police. After the police arrived at the scene of the crime at about 5:00 a.m., the neighbor then took Eubanks to the hospital. Although Eubanks returned to her home after being examined by a doctor, at approximately 8:00 a.m. she returned to the hospital again because she had begun hemorrhaging. At approximately 8:45 a.m. a doctor surgically repaired lacerations in her posterior vaginal wall and in her cervix. Eubanks remained in the hospital for several days thereafter.

 On that July 7, 1985, at approximately 2:00 a.m. - about one hour [before] * the rape - Bonny Wilson and girlfriend Deborah Boler had discovered L. V. Johnson in their house, which is about four or five blocks south of the Eubanks residence. After ordering Johnson out of their home, Wilson and Boler, at approximately 2:45 a.m. while proceeding to the police station, observed Johnson in the vicinity of Eubanks' residence. At the police department Wilson and Boler reported Johnson for breaking and entering their premises. However, at this time the police did nothing because they did not wish to awaken the judge for signing of a warrant.
 At approximately 12:30 p.m. on July 7, 1985, in Meridian, Mississippi, L. V. Johnson was taken into custody pursuant to a warrant for breaking and entering Bonny Wilson's residence. Johnson was returned by police car to Philadelphia, Mississippi, where he was apparently taken to the hospital for a "rape suspect" examination, though [when] * this hospital visit occurred is in conflict. Johnson was not questioned until some twenty-four hours later, at approximately 1:00 p.m. of the next day, July 8, 1985, because Johnson was not "at hisself;" he appeared to be "under the influence of something."
 At this questioning about the rape, according to police, Johnson signed a statement in which he acknowledged and waived his [Miranda] * rights. He next slammed his hand on the table and stated "I'm your man. . . . I'm ready to make a statement. . . . I don't want a lawyer." According to police Johnson then gave a signed statement admitting his guilt. When confronted with the above police testimony at trial, Defendant Johnson rose from his chair, called the testifying police investigator a "lying son of a bitch," and fell to the floor in an apparent faint.

 This confession included not only admission of the rape but also a statement that Johnson had gone into another house earlier in the night. At trials after a hearing out of the presence of the jury, the reference to this "other crime" of breaking and entering was deleted from the confession. However, the confession in its entirety was later at the end of trial allowed to go to the jury because Defendant Johnson himself injected testimony concerning the crime of breaking and entering Wilson's home.

 Apparently the police rested their case on Johnson's confession. No fingerprints were taken at the scene of the crime, the police never attempted to search L. V. Johnson's home, the rape kit apparently was never retrieved from the

 Mississippi Crime Lab, and the victim was never given an opportunity to identify Appellant Johnson - either in a line-up or by photograph.

 B.

 On September 17, 1985, the Grand Jury for Neshoba County returned an indictment charging Johnson with the crime of rape. Miss. Code Ann. 97-3-65(2) (Supp. 1985). Johnson was also charged as a recidivist within Miss. Code Ann. 99-19-81 (1972). The matter was called for trial in Circuit Court on October 2, 1985. On the following day the jury returned a verdict as follows:

 We, the Jury, find the Defendant, L. V. Johnson, guilty as charged and unanimously agree to fix his punishment at imprisonment for life.

 Thereafter, the Circuit Court heard the prosecution's charge that Johnson be sentenced as a habitual offender. Evidence was presented establishing that Johnson had been convicted on a charge of armed robbery in the Circuit Court of Neshoba County on February 21, 1978, that he had been convicted on a charge of forgery in the Circuit Court of Neshoba County on September 29, 1983, and that on the same date he had been convicted of a crime of grand larceny in the same court. Thereafter, the Circuit Court sentenced Johnson to life imprisonment without eligibility for parole, probation, suspension or reduction of sentence. Miss. Code Ann. 99-19-81 (1972).

 On October 4, 1985, Johnson filed his motion for a new trial asserting numerous errors in the trial proceedings. On the same date the matter was taken up and considered by the Circuit Court and an order was thereupon entered overruling and denying the motion. This appeal has followed.

 III.

 Johnson first assigns as error the Circuit Court's refusal to order a change of venue. The matter was presented at a pre-trial hearing held on September 26, 1985. Each side presented the testimony of four witnesses. In the end the motion for change of venue was denied.

 Counsel for Johnson points out that upon recross-examination of one of the State's witnesses, tax assessor for Neshoba County admitted that a rape of a 76-year-old white female by a 24-year-old black male could very well

 be the type of case that would subject the accused to an unfair trial by a partial jury. Also State's witness Stanley Dearman, owner and editor of the [Neshoba Democrat] * Newspaper, admitted upon cross-examination that such a crime would be "a volatile sort of thing that people would have strong feelings about."

 Current change of venue jurisprudence in this state directs "that a motion for change of venue ordinarily should be granted where, under the totality of the circumstances it appears reasonably likely that, in the absence of such relief, the accused's right to a fair trial may be lost. Fisher v. State, 481 So.2d 203, 220 (Miss. 1985); see also Weeks v. State, 493 So.2d 1280, 1287 (Miss. 1986); Cabello v. State, 490 So.2d 852, 854 ...


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