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NELSON McKINNEY v. STATE OF MISSISSIPPI

MARCH 02, 1988

NELSON McKINNEY
v.
STATE OF MISSISSIPPI



BEFORE HAWKINS, P.J., PRATHER AND SULLIVAN, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

Nelson McKinney was convicted in the Lee County Circuit Court of felonious rape and armed robbery and sentenced to life imprisonment. The issues we address on his appeal are the sufficiency of the evidence and whether the court erred in overruling McKinney's motion for a change of venue.

Finding no reversible error, we affirm.

 FACTS

 JoAnn Gann, a white female fifty years of age, was employed as a desk clerk at the Town House Motel in Tupelo. She began work at 11:00 p.m. on the night of January 1, 1985. It was not a busy night for the motel. Two rooms had been rented. About 11:45 p.m. she locked the door to the office, a practice at the motel. As she had done so, a black male knocked on the door and she opened it. He inquired about a room, and she told him it would be $25.

 The man came into the office, handed her a five dollar bill saying he had some money in his pocket. He reached into his pocket, pulled out a pistol, and told her to give him the money.

 She opened the cash drawer and handed him all the bills.

 He then said, "Let's go." She got a key to Room No. 3 and at gun point they went to the room, which she opened. He then ordered her to undress. After this he directed her to perform fellatio on him. Following this he pushed her on the bed and raped her. He told her that he was not going to hurt her. He did not remove his clothes. When he finished, he straightened his clothes and left. Gann dressed and stayed in the room for a short while, and then looked out and seeing no one, ran to the office, called the police and then the assistant manager and her husband.

 The manager and police arrived shortly. Gann was taken to the hospital and examined. Some seminal fluid was found. No pubic hairs were found. Although the rapist wore no gloves, no fingerprints could be lifted at any place in the motel.

 Nelson McKinney was indicted by the Lee County grand jury on May 31, 1985, for felonious rape of Gann, and also for armed robbery. On August 28 the two charges were consolidated upon motion by the State, and without objection by the defense. On September 9 McKinney moved for a change of venue, and following a hearing, the motion was overruled.

 The evidence offered into court as to the change of venue will be discussed later in the opinion. The case went to trial on September 11.

 At the trial Gann positively identified McKinney as the person who robbed and then raped her.

 McKinney's defense was an alibi. He was twenty-five, married and the father of two daughters, one only three months old and the other only a little over a year old. He was a high school graduate, and had gone one year to junior college on a baseball scholarship. He attended barber college and then married. Following that he had been employed in several jobs - a meat packing company, a furniture plant and in January, 1985, as a service agent for the Tupelo airport. He was in charge of locking up the airport at night, working from noon until 9:00 p.m. as a customer service agent.

 He testified that on New Year's Day, he, his wife Phyllis and their children had gone to his wife's parents' home in Union County and spent the day. They came home around 9:00 or 9:30 p.m. that night. While his wife put the children to bed, he went outside to feed his beagle dogs. About twenty-five yards from McKinney's residence, the Willie Sorrells house was located. While outside feeding his dogs, McKinney testified he talked to Willie Sorrells and his son Michael. After that McKinney went back into the house, and testified he went to sleep and was at home in bed at 11:45 p.m. on the night of January 1, 1985. McKinney denied committing either the rape or the ...


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