BEFORE HAWKINS, P.J., SULLIVAN AND ZUCCARO, JJ.
ZUCCARO, JUSTICE, FOR THE COURT:
The appellant, Edward Epps Daniel (Spider), was indicted as an habitual offender pursuant to Miss. Code Ann. 99-19-81 (1972), by a grand jury in Jackson County, Mississippi for the crime of sexual battery against a child under the age of twelve years. Daniel was tried and found guilty, by a jury, and then sentenced to a term of thirty years in custody of the Mississippi Department of Corrections. Daniel appeals assigning as error the following:
I. THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION TO SUPPRESS THE RESULTS OF TESTS DONE ON BLOOD SAMPLES AND BODY-CAVITY SWABS TAKEN FROM THE APPELLANT.
II. THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S NOTION IN LIMINE TO PROHIBIT THE STATE FROM INTRODUCING TESTIMONY OR EVIDENCE SHOWING THAT APPELLANT EITHER HAD GONORRHEA OR SEXUALLY TRANSMITTED GONORRHEA TO THE VICTIM.
III. THE TRIAL COURT ERRED IN ALLOWING THE APPELLANT TO BE CONVICTED OF A CRIME ALLEGEDLY COMMITTED ON JANUARY 17, 1986 WHEN THE STATE FAILED TO PUT ON PROOF THAT THE CRIME WAS COMMITTED ON THAT DATE.
The appellant Edward Epps Daniel was indicted by the grand jury of Jackson County, Mississippi. The indictment alleged that Edward Daniel ("Spider") committed sexual battery upon Jacquelyn Broadnax, six years old at the time, on or about January 17, 1986. Appellant was indicted under Miss. Code Ann. 99-19-81 as an habitual offender.
"Spider" was arrested on March 11, 1986 in Comeaux by the Comeaux Police Department. On March 13, 1986 "Spider" was transported to Pascagoula.
Detective Jo Ann Byrd and Ralph Holiman, Assistant District Attorney, appeared before Honorable Clinton Lockard, Circuit Judge in Pascagoula, and requested that the court "order that blood samples and body cavity swabbings be taken as a search incident to arrest" of "Spider" Daniel.
The court ordered that blood samples and swabbings of body cavities be taken by appropriate and qualified medical personnel and that the results of these tests be disclosed to
any lawful police authority of the State of Mississippi.
Dr. Cathy Butts, a pediatrician at the Jackson County Health Department, testified that she performed the tests which revealed that Jackie had gonorrhea. Dr. Butts testified that Jackie's hymen had been torn and that there was scarring inside Jackie's vaginal vault. Dr. Butts testified that the scarring was consistent with sexual penetration and inconsistent with results which would occur by scratching. The doctor testified that Jackie had internal as well as external gonorrhea in the vaginal and anal areas.
Dr. Butts also testified that she tested "Spider" for gonorrhea. Dr. Butts testified that the test results revealed that "Spider" was infected with penile gonorrhea only.
Jackie Broadnax testified at trial. Jackie identified "Spider" and testified that he had molested her. It is not necessary for purposes of appeal that we discuss the details of Jackie's testimony. Suffice it to say that, Jackie unequivocally named "Spider" as the person who sexually abused her.
"Spider" Daniel testified at trial in his own defense. He denied committing sexual battery upon Jackie. "Spider" testified that Coretta Ezell had made sexual overtures towards him and that he had declined the overtures. "Spider" testified that Coretta became angry and persuaded Jackie to lie about him.
The jury returned a verdict of guilty of sexual battery against "Spider" Daniel. "Spider" was sentenced to thirty years, the maximum penalty under the statute, as an habitual offender. He appeals.
I. DID THE TRIAL COURT ERR IN OVERRULING APPELLANT'S MOTION TO SUPPRESS THE RESULTS OF TESTS DONE ON BLOOD SAMPLES AND BODY CAVITY SWABS TAKEN FROM APPELLANT?
"Spider" Daniel argues that the introduction into evidence of the results of tests performed on blood samples and body cavity swabs taken from him was a violation of his Fourth and Fourteenth Amendment rights to be protected from unreasonable searches and seizures. The results of the tests revealed that "Spider" Daniel was infected with gonorrhea.
Prior to trial, "Spider" filed motions in limine to prohibit testimony being elicited or otherwise placed into evidence with reference to the fact that "Spider" Daniel had
gonorrhea. The motion was overruled and the defense renewed the motion on the date the trial opened. The court overruled the motions.
At trial, Jo Ann Byrd testified that she had taken "Spider" to the health department to have him tested for gonorrhea after having obtained a court order. Dr. Catherine Butts testified that she performed the tests revealing "Spider" had gonorrhea. "Spider" testified that he had gone to the health department and had been informed by the doctor that he had gonorrhea.
We are called upon today to determine whether the aforementioned tests violated the appellant's Fourth Amendment constitutional privilege, "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." U.S. Const. Amend. IV. We must recognize that the Fourth Amendment's proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified or which are made in an improper manner. Birchfield v. State, 412 So.2d 1181, 1183 (Miss.1982).
"Spider" argues here on appeal that the samples were taken from him in the absence of a valid search warrant and therefore violated his right to be free from unreasonable search and seizure.
The record reveals that Ms. Jo Ann Byrd, a detective with the Pascagoula Police Department and Ralph Holiman, an assistant district attorney, appeared before the Honorable Clinton Lockard, Circuit Judge in Pascagoula, and requested a search warrant to obtain blood samples and body fluids from "Spider" Daniel. Byrd and the assistant district attorney,
Holiman, presented Judge Lockard with a "Motion for Search Incident" [sic] which set forth the reasons for requesting a search warrant authorizing the removal of blood and body fluids from "Spider" Daniel. The reasons set forth follow:
I. That a warrant for the arrest of "Spider" Daniel had been issued on March 10, 1986 ...