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LOYCE EDWARD BURNSIDE v. STATE OF MISSISSIPPI

DECEMBER 21, 1988

LOYCE EDWARD BURNSIDE
v.
STATE OF MISSISSIPPI



BEFORE DAN LEE, P. J., PRATHER AND SULLIVAN, JJ.

PRATHER, JUSTICE, FOR THE COURT:

ON PETITION FOR REHEARING

In this criminal appeal from the Circuit Court of Yazoo County, Mississippi, Loyce Edward Burnside was convicted of rape and sentenced to a term of life imprisonment in the custody of the Mississippi Department of Corrections. Feeling aggrieved of this conviction, Burnside appeals and assigns as error:

 (1) The court below erred in not granting the motion of the appellant to suppress appellant's alleged confession;

 (2) The court below erred in not granting the motion of the appellant to suppress the evidence and testimony obtained

 as a result of an unreasonable search and seizure of the appellant without proper consent thereto; and

 (3) The court below erred in not sustaining the appellant's motion for a new trial.

 I.

 Mrs. Helen Odom, 65 years old, was living alone in Jonestown, Mississippi, her husband having recently died. On March 6, 1986, Mrs. Odom went to bed around 11:00 or 11:30 p.m. After midnight, a man entered her bedroom, assaulted her and forcibly had sexual intercourse with her. Additionally, Mrs. Odom testified that the man threatened to kill her if she told anyone about the rape.

 Prior to this attack, Mrs. Odom had seen her assailant in and around the neighborhood. She recognized him immediately after he came into her bedroom, and although she did not know his proper name, she knew him by a nickname.

 Following the incident, a police officer drove Mrs. Odom to the hospital and took a preliminary verbal report from her. She also gave a statement at the jail.

 The doctor who examined Mrs. Odom at the hospital, observed that she had a bruised lip, a torn and bleeding vaginal entrance with fluid coming from the vaginal opening. The doctor testified that Mrs. Odom was" very alert and . . . seemed to have a very clear version of the events which happened. "The doctor completed a sexual assault kit and delivered it to the police officers. From the victim's description, Loyce Edward Burnside was picked up and voluntarily submitted to a male rape kit test.

 On the following morning, Yazoo Police Captain Wade Woods and Chief Fleming interviewed Burnside. According to Woods, Burnside stated that he understood his rights and executed a rights waiver. Woods also claims that Burnside told both him and Officer Jimmy Fleming that" he had entered the residence by way of a window. "Upon gaining access to the house, Burnside" placed some items of clothing over her face . . . and . . . had sex with her. "

 At trial Larry Turner, forensic serologist with the Mississippi Crime Laboratory, analyzed the contents of this kit as well as evidence taken from the body of Burnside, and concluded that the vagina sample contained" seminal fluid . . . from a person who is [blood] Type B and a secreter, "characteristics exhibited by Burnside. At trial, Mrs. Odom

 positively identified Burnside as the defendant.

 II.

 Since two of the assignments of error relate to the defendant's motion to suppress a discussion of the procedural posture of these motions would aid understanding. Defendant objected to two items: (1) the male rape ...


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