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JOHNNY LEE EVANS a/k/a CHARLES KIMBERLY v. STATE OF MISSISSIPPI

JUNE 28, 1989

JOHNNY LEE EVANS a/k/a CHARLES KIMBERLY
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, ROBERTSON and SULLIVAN

ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:

Johnny Lee Evans was indicted in the Circuit Court of Harrison County, Mississippi, on charges of kidnapping and rape. The indictments were consolidated for trial by agreement of Evans and the State. Evans waived a jury trial on both the guilt and sentencing phases and insisted that the charges be heard by the circuit judge without a jury. Although the State objected to the bench trial, the court granted Evans' motion for trial without jury, and proceeded with the bench trial. The trial judge found

Evans guilty on both charges and sentenced him to serve thirty (30) years on the kidnapping charge and sentenced him to life on the rape charge, in the custody of the Mississippi Department of Corrections. Evans has appealed to this Court and assigns five (5) errors in the trial below.

 Facts

 The victim in this case is Sister M., a Catholic nun, who resides on the Mississippi Gulf Coast. She was an instructor of English as a second language for the Catholic Social Services in Biloxi. On October 7, 1985, Sister M. first encountered appellant. He approached her and requested that she drive him to the VA Hospital, and she complied with his request. Upon letting appellant out at the VA Hospital, Sister M. was preparing to drive away when he came back to her car and told her that the VA refused to take him because he did not have the proper papers. He asked for a ride back and Sister M. let him out of her automobile on Lameuse Street.

 On October 8, 1985, appellant approached Sister M. outside the school where she taught and again asked her to take him to the VA Hospital, which she agreed to do. Sister M. and appellant left the Catholic Social Services building and she drove to the VA Hospital. En route, the appellant asked her to drive to his cousin's house so he could get some needed papers and gave her instructions how to get there. They arrived in the area, appellant failed to recognize anything, and Sister M. turned around and started towards the VA hospital again. On the way, the appellant indicated that he recognized his cousins's street and had Sister M. to turn down the street which eventually ended up on Post Lane Road. He was still unable to identify his cousin's house. Sister M. turned her vehicle around and started back towards the VA hospital, when appellant grabbed the keys out of the ignition and turned the engine off. He forced Sister M. outside the car and into some bushes where he told her to remove her hose and panties. She began to yell and the appellant choked her; she struggled with the appellant, but he overpowered her and attempted to engage in sexual intercourse.

 Appellant forced Sister M. into the car, which appellant drove to County Barn Road where he stopped the car, forced her to lie down, and raped her.

 After the assault, appellant moved to the passenger side of the car and Sister M. started driving. He rolled the car window down and threw her underwear outside. When they arrived at Popps Ferry Road, the appellant told her to stop the car, and indicated that he wanted to walk. He began to walk toward the woods and Sister M. locked her car doors, and drove home in

 search of her housemate, Lourdes Esculano. Upon finding her, they drove to the police station, where she reported the assault.

 Sister M. was taken to the emergency room at Biloxi Regional Medical Center where Dr. Russell McDowell, the emergency room physician, examined her and assembled a rape evidence kit. His examination revealed that Sister M. was a physical virgin and there was blood in her vaginal vault. He made slides and took smears of the vaginal fluid and determined that numerous spermatozoa were present. The acid phosphate level indicated recent sexual intercourse. He found abrasions and scratches on Sister M.'s body and obtained physical evidence from her.

 Dr. McDowell also performed a rape evidence exam on the appellant after his arrest and obtained physical samples from him.

 Officer Rodney Vincent Fountain, of the Biloxi Police Department, conducted an investigation of the assault. He photographed Sister M.'s vehicle and found a red substance in it which appeared to be blood. He went to the area where the rape occurred, and found a pair of white undergarments and a straw hat, worn by appellant. He also found one of Sister M.'s shoes and a notebook containing papers with appellant's name on them.

 Tests performed at the Mississippi Crime Lab indicated that fragments of hair on Sister M.'s clothing were microscopically the same as the known head hairs of the appellant. The analysis of blood samples and seminal fluid compared positively with those of appellant.

 La ...


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