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RICKEY LIVINGSTON v. STATE OF MISSISSIPPI

FEBRUARY 03, 1988

RICKEY LIVINGSTON
v.
STATE OF MISSISSIPPI



EN BANC

ANDERSON, JUSTICE, FOR THE COURT:

The appellant, Rickey Livingston, was convicted in the Circuit Court of Hinds County on a charge of rape. After the jury failed to return a sentence of life imprisonment, the trial judge imposed a sentence of 40 years to be served consecutively with previously existing sentences.

The only questions we need address are those regarding identification, right to counsel at lineup and comments by the prosecutor. After careful review of each assignment, we find no reversible error and affirm.

 FACTS

 At around noon on December 14, 1984, the 24-year-old prosecutrix, who lived alone in her apartment, answered a knock on her door. There was a young, black male, in his mid-twenties standing about a foot from her door. There was plenty of sunlight in that area and she got a clear and unobstructed view of his face. She later positively identified the man as the appellant Rickey Livingston.

 He pretended to solicit subscriptions or donations for National Geographic magazine. The prosecutrix said," no "and he asked if anyone else there would like to contribute. Again, she answered" no "and attempted to close her door, whereupon the man forced his way in. She screamed and he slammed the door shut and choked her until she passed out momentarily. He continually choked her and threatened her several times saying," shut up or I'll kill you. "

 The assailant raped the prosecutrix twice and demanded money before leaving. The entire episode lasted ten to fifteen minutes.

 A college student, Steve Gifford, who resided in

 the apartment complex testified for the state that around noon on the day in question he heard a woman scream and a door slam in the vicinity of the victim's apartment. About fifteen minutes later he observed a man, whom he positively identified as Livingston, run from the direction of the prosecutrix' apartment.

 Medical testimony showed that semen collected from the prosecutrix' underclothes was analyzed and compared with blood and saliva samples from the defendant. The results showed that the semen came from a person with Blood Type A and a secreter. Livingston is a Type A secreter. This test was not conclusive proof of appellant's guilt, but was evidence that the appellant could not be excluded as a suspect.

 The appellant's mother offered testimony that the appellant was home during the time of the alleged rape. The appellant did not testify and offered no other evidence.

 I.

 On December 19, 1984, the prosecutrix identified the appellant as her attacker from a series of photographs shown her by the police. A warrant was issued and on December 20, Livingston was arrested at his mother's house. On the same day he was placed in a lineup for identification by the state's witness Gifford. On December 22 he was placed again in a lineup for identification by the prosecutrix. The record is silent as to whether counsel for the appellant was present at either of the lineups.

 Now on appeal, appellant alleges error in the admission of testimony by the prosecutrix, state's witness Gifford and Detective Knowles regarding the out-of-court ...


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