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OCTOBER 26, 1988





This case presents a problem we encounter all too often. The prosecution charges the accused with a serious felony, only to have the defense offer a version of the facts rendering the accused far less culpable and, most important, subject to a far lesser punishment. If the evidence be such that a reasonable jury might have found the facts as the defense suggests them to have been, the accused of right is entitled to have the jury consider that option and be instructed to that effect. Where, as here, the lesser offense instruction has been denied, we have no alternative but to reverse.


 At approximately 11:15 on the evening of November 2, 1985, Hinds County Deputies Sweeny and Gray were patrolling an area in northern Hinds County. As they were driving down a deserted street near McLain Road, the deputies observed a station wagon with the right rear door opened parked along the lefthand side of the road. When they stopped to investigate, they observed a man beating a woman in the car. They also heard the woman scream "Please don't kill me."

 The officers identified themselves and ordered the occupants to get out of the vehicle. At that point the man in the car sprung to the front seat and, lying prone across the seat, attempted to drive the station wagon away, one hand on the steering wheel, the other on the accelerator. After traveling twenty feet or so the station wagon came to rest in a rather deep drainage ditch. When the male occupant, Monroe Griffin, finally did get out of the station wagon, the police placed him under arrest. The police then interviewed the female occupant of the car, D.F., who claimed that she had been raped by Griffin.

 How Monroe Griffin and D.F. came to that remote spot in Hinds County on the night of November 2, 1985 (and to the attention of Deputies Gray and Sweeny) was at trial and is on appeal the central issue in this case. Two very contrasting stories were presented at trial. Having these well in mind is essential to understanding the outcome determinative issue on this appeal.

 First, the prosecution's version.

 D.F. testified that she went to visit a friend at around 7:00 p.m. on November 2. There were a number of people at her friend's house drinking gin and she joined them. The friend, Edna Davis, gave D.F. money and sent her to a liquor store to buy more gin. A man who was also present at the party, Monroe Griffin, offered to drive F. to the liquor store. F. stated that, instead of driving to the liquor store, Griffin took her directly to a deserted road in north Hinds County, pulled the car over to the shoulder of the road, forced her into the back seat and raped her. F. denied that she consented to have intercourse with Griffin. Regarding the time that these events took place, F. stated that it was 7:30 p.m. when she left Davis' house with Griffin. She was certain about the time. F. stated that Griffin drove her directly to the deserted location and her encounter with Griffin in the car lasted approximately twenty minutes.

 On cross-examination, F. could not explain the vast discrepancies in time between her account of events and the police officer's testimony. She also denied that her common-law husband, a man named Louis Ford, might be responsible for her black eye, saying that he "has never beat me up." F.'s account of the encounter with the deputies was substantially the same as the testimony of Deputy Sweeny.

 Monroe Griffin testified in his own defense. His version of the events of November 2 differ markedly from that of F.'s. Griffin stated that he first met D.F. at around 3:00 p.m. on November 2 while he was shopping at a liquor store. At that time F. invited Griffin to meet her at Edna Davis' house that night. Later that evening as Griffin was driving up to Edna Davis' house he observed F. on her way to the liquor store, and offered her a ride in his car.

 The two went to the liquor store and, after some rather suggestive conversation, Griffin recommended that they check into a motel room and D.F. agreed. They checked into the Baker Motel on Highway 49 (an establishment which was well known as a flop house), paying $10.00 for three hours in the

 room. Griffin testified that they checked in sometime between 7:00 and 7:30 p.m. and that once in the motel room the two engaged in conversation, F. took a shower, and they engaged in intercourse.

 Soon thereafter, the two became aware that their three hour rental of the room was about to expire. Rather than pay an additional $10.00, they decided to check out of the motel room and return to Davis' house. Griffin stated that, while in the motel room, he noticed that F.'s lip was injured and she told him that her "old man" , Louis Ford, was responsible. After stopping for gas while returning to Davis' house, the two decided to find a secluded spot and return to their romantic endeavors. Griffin testified that he paid F. $10.00 to perform oral sex on him. While she was so engaged, however, Griffin insulted F. by referring to her as "bitch" . F. responded by squeezing his penis and testicles and, in an effort to free himself, Griffin began to strike her about the face. He then instructed F. to get out of his car and get home the best way that she could.

 The two reconciled, however, and immediately returned to their amorous activity. Griffin stated that at no time during the roadside encounter did he penetrate D.F. At that moment Griffin became aware of the presence of another car, although he was unaware that it was a sheriff's patrol vehicle. Griffin stated that he placed the car in "drive" in an effort to frighten away the occupants of the other car, but, owing to his contorted ...

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