BEFORE DAN LEE, SULLIVAN AND ANDERSON
DAN LEE, PRESIDING JUSTICE, FOR THE COURT:
L. V. Johnson was indicted in Neshoba County for forcible rape under Miss. Code Ann. 93-3-65 (2) (1972 & Cumm. Supp. 1987), on January 17, 1986. He was also indicted as an habitual offender pursuant to Miss. Code Ann. 99-19-81 (1972 & Cumm. Supp. 1987) on March 25, 1986. Mr. Johnson's motion for a change of venue was granted and the trial was moved to Scott County, where Mr. Johnson was tried and convicted and sentenced to serve 40 years on the state penitentiary without benefit of parole, suspension, probation, or reduction of sentence.
He appeals this conviction and sentence to this Court, assigning the following errors:
I. THE TRIAL COURT ERRED IN FAILING TO SUSTAIN APPELLANT'S MOTION FOR A CONTINUANCE ON THE GROUNDS OF THE ABSENCE OF A MATERIAL WITNESS FOR THE APPELLANT WHO WOULD HAVE TESTIFIED THAT THE APPELLANT WAS AT SAID MATERIAL WITNESS'S HOUSE WHEN THE RAPE OCCURRED.
II. THE TRIAL COURT ERRED WHEN IT FAILED TO SUSTAIN THE OBJECTION OF THE APPELLANT TO THE ADMISSION INTO EVIDENCE OF A STATEMENT, OR ALLEGED CONFESSION OF THE APPELLANT, WHICH WAS MADE AT A TIME WHEN APPELLANT WAS UNDER THE INFLUENCE OF DRUGS AND ALCOHOL.
III. THE LOWER COURT ERRED IN FAILING TO SUSTAIN THE MOTION FOR A NEW TRIAL BY THE APPELLANT ON THE GROUNDS THAT THE VERDICT OF THE JURY WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE.
IV. THE TRIAL COURT ERRED IN FAILING TO SUSTAIN APPELLANT'S OBJECTION AND MOTION FOR A MISTRIAL WHEN APPELLANT WAS ASKED ABOUT HIS CONVICTION FOR THE RAPE OF MRS. EUBANKS IN OCTOBER 1985, IN NESHOBA COUNTY CIRCUIT COURT.
Around 3:00 a.m. on July 7, 1985, Mrs. Eddie Lee Eubanks, age 76, got up from her bed to go to the bathroom. When she came back, she felt someone in the bed and asked," Who are you and where did you get in? "A male said," I come in the only window you left open in your house. "The man then raped her. He then wanted to be taken to where she kept money. He grabbed her flashlight, her telephones, and pulled a knife across her throat. She went to get her change purse from on top of the refrigerator and he grabbed her piggy bank off the mantle. He then wanted to be taken to the purse that she carried everyday. She took him to the guest bedroom and gave him a purse that did not have anything in it. He threatened to kill her for lying about her purse, whereupon she handed him the purse that she carried her money in. After this, he forced her back to the bedroom and raped her again. Then, he forced her back to the kitchen, picked up the telephones, the money, the piggy bank, two knives from her silverware drawer and asked Mrs. Eubanks to open the door. He threatened to kill her if she hollered or came after him. He left the house and went towards an electronics shop next door to Mrs. Eubanks' house. Mrs. Eubanks then went in search of help. A neighbor took
We note at this point that Mr. Johnson was previously convicted in the Circuit Court of Neshoba County for the first rape of Mrs. Eubanks, which occurred some 15 minutes prior to the second rape the conviction of which is the subject of this appeal. The conviction and sentence of life imprisonment without parole for the first rape was affirmed by this Court in Johnson v. State, 511 So.2d 1360 (Miss. 1987). Mr. Johnson is confined for life and cannot serve any more time, regardless of the outcome of this case. Our decision in Johnson I disposes of all the questions Mr. Johnson raises on this appeal, save one: that the trial court erred in failing to sustain appellant's objection and motion for mistrial when the state asked him about his conviction for the earlier rape of Mrs. Eubanks.
On direct examination Mr. Johnson testified that he had served seven years in the state penitentiary for convictions of armed robbery, forgery and grand larceny. On cross examination the state referred to his testimony about previous convictions, and then asked if he had been convicted of another felony. Mr. Johnson responded," Recently, on this charge. "Defense counsel objected and moved for a mistrial. The court overruled the objection and the motion. The state then asked if he had been convicted in October of 1985 for rape, to which he replied," yes, sir. "
This is a heinous, egregious crime and we are loathe to reverse in such a case. But as we noted above, Mr. Johnson has already received the maximum sentence he can receive under the law, short of the death penalty. We, therefore, take this opportunity, since this sentence overlays the other, to address a problem with the system. We reverse for the reasons which follow.
This case was tried in March 1986, after the adoption of the Mississippi Rules of Evidence, effective January 1, 1986; therefore, M.R.E. 609 ...