BEFORE HAWKINS, P.J., PRATHER & SULLIVAN, JJ.
SULLIVAN, JUSTICE, FOR THE COURT:
On November 14, 1985, a criminal conviction was returned in the Circuit Court of Smith County, Mississippi, the Honorable L. D. Pittman, presiding, wherein Grady Brown was tried and found guilty of rape. Brown was sentenced to a term of thirty (30) years with ten (10) years suspended in the custody of the Mississippi Department of Corrections. Brown appealed to this Court for relief assigning as error the following:
I. That the trial court erred in refusing to grant a new trial on the grounds that two perspective jurors did not truthfully respond to questions propounded to them on voir dire examination by the court and the parties; and
II. That the trial court erred in granting instruction S-2 over objection of the defendant.
Cynthia Crosby identified Grady Brown as the man who allegedly raped her on February 10, 1985. The first witness called by the State was Stanley Lott, Crosby's ex-husband. Lott testified that he called Crosby at her mother's home on February 10, 1985, and asked her to meet him that night to discuss past due child support which Lott had failed to pay. The two met, at Lott's request, near a garbage dump on an isolated gravel road off of Summerland Road in Smith County. After their discussion, Lott returned to his car and was about to back out when a van pulled in behind him. He testified that he got out of the car to see who it was and that Brown got out of the van with a gun. Lott said that when Brown asked him what they were doing, he told him that
they were about to leave, and Brown said," You had your chance, "and raised his gun. Lott testified that he begged him not to shoot.
According to Lott, Brown then went to see who was in the other car and when he turned away Lott ran across the road into the woods and watched. He saw Crosby and Brown walking down the road yelling at him to come back and that Brown would let them leave. After that, Lott could hear nothing. He waited, watching, for 45 minutes to an hour until he saw the van and Crosby's vehicle leave. According to Lott, he then left and drove to Crosby's house and honked the horn; she came out and told him Brown had raped her.
Cynthia Crosby testified that she was in her car when the van pulled up and saw Brown get out of the van but saw nothing in his hands. She heard voices at first and when everything got quiet she got out of the car and asked Brown where Stanley was and Brown said," Young lady, you've got to start doing some talking now because Stanley, he has run. "She said that Brown made her call for Lott. According to Crosby, Brown then told her," I'll tell you what, I have never went with a black girl, but this is one night I'm going to go with one before you go home. "When Crosby refused, Brown pointed his gun at her shoulder. She testified that they then went to Crosby's car where he laid the gun on top of the car, got inside, and raped her after which he got out and told her she could go home. Crosby said that she did not resist in any way because she was afraid.
Grady Brown did not testify, but his statement was introduced through the testimony of Smith County Sheriff Keith Bounds. According to his statement, Brown's version of the facts is basically the same as that of Crosby and Lott except that he claims that he propositioned Crosby and that she consented to having sex with him.
Bounds testified that there was not a rape kit for this case because Crosby waited until the day after the rape to file charges.
The jury found Brown guilty of rape but was unable to fix a penalty. The trial judge sentenced Brown to thirty (30) years with ten (10) years suspended in the custody of the Mississippi Department of Corrections.
THAT THE TRIAL COURT ERRED IN REFUSING TO GRANT A NEW TRIAL ON THE GROUNDS THAT TWO PERSPECTIVE JURORS DID NOT TRUTHFULLY RESPOND TO QUESTIONS PROPOUNDED
TO THEM ON VOIR DIRE EXAMINATION BY THE COURT AND THE PARTIES.
Brown argues that it was error to deny his" motion for new trial. "At the hearing on the motion, the parties stipulated that Juror Kathy Maas had a case pending in the court which convicted Brown; in fact, her case was set for trial on the Monday following Brown's trial. Brown argues that had the court known of Maas' pending lawsuit, she would have been ...