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OCTOBER 04, 1989




This is a rather bizarre capital murder case in which the prosecution sought to prove that the defendant shot and mortally wounded his female victim and then sexually assaulted her. In spite of a comprehensive defense discovery request and a prosecution promise that the testimony of its principal expert witness, a pathologist/psychiatrist, would be limited to that at defendant's first trial, the prosecution on the third day of trial offered through this expert a free floating lecture on a psychosexual disorder he labeled necrophilia.

Moreover, this expert opinion testimony was never tied to the defendant whose behavior was at issue, nor was it offered with reasonable certainty given the state of knowledge in the field. As such the evidence was inadmissible. The point is important for without the sexual assault the defendant may not

 lawfully be exposed to the death penalty, and the prosecution's proof there is otherwise problematical. Because the trial court overruled the defense objection to the necrophilia testimony, we must reverse and remand for a new trial.


 A. *fn1

 On June 5, 1983, Otha (Othie) Lee West was eighteen years old and was living with his mother and nine-year-old brother in an upstairs apartment in the Lincoln Garden Apartments Complex in northwest Jackson. He had completed twelve years of formal education and was generally a C or D average student in high school. On the same day, Mary Ann Brim, age 54, was living in a ground floor apartment with her common-law husband of fifteen years, Theodore Lee.

 In the evening before the sun had set, a number of neighborhood children were congregated in a playground area near the apartment building. They witnessed an argument between West and Brim taking place on Brim's front stoop. As the children watched, West ran to his upstairs apartment using the exterior stairway. He soon returned, circling the building before making his way back to Brim's front door, a black revolver in his hand. As Brim looked out her door, West forced his way into the apartment, closing the door behind him. Gunfire and a scream followed moments later.

 Officer Charlie Hedgepeth of the Jackson Police Department was patrolling nearby when he received a radio dispatch at approximately 7:30 P.M., reporting that shots had been fired at the Lincoln Garden Apartments. He responded to the call within two or three minutes. Theodore Lee arrived at the same time as Officer Hedgepeth, and assisted the officer's entrance to Brim's apartment, as the front door was locked. Hedgepeth and Sergeant Freddie Weeks entered the apartment ahead of Lee and found Brim's body lying on the living room floor, clothed only in a blouse, which had been pulled up revealing her breasts and a single bullet wound to the chest. Her slacks and panties were found next to the body. Brim had apparently been sexually assaulted. Six inches to the right of her head a bullet hole had pierced the linoleum floor. A flattened slug was found next to the body. A .38 caliber revolver had been placed upon a credenza located at the foot of the body.

 A few seconds later, Hedgepeth heard a noise coming from a bedroom. He approached and shouted "Freeze! Police!" He then heard the sound of breaking glass. Levin Jones, one of the children who was playing outside in the area, saw West crash

 through the rear window and begin to flee. Hedgepeth rushed into the bedroom, climbed out the window, and pursued north toward Moonbeam Street. Hedgepeth saw his suspect enter a lounge known as the "CB 40 Club" , located some 500 yards from the apartments. Sergeant Weeks also pursued on foot and, after Weeks had reached the lounge, the two policemen entered.

 Inside the lounge, the officers found West sitting at a table, sweating and panting. He was placed under arrest and taken to the precinct station. Later, West was transported back to the apartments and identified by the eyewitnesses as the man who had forced his way into Brim's apartment.


 This criminal prosecution was formally commenced on March 5, 1984, when the Grand Jury of the First Judicial District of Hinds County, Mississippi, charged West with the capital murder of Mary Ann Brim, citing as the underlying felony that West had committed the crime of sexual battery against the person of Mary Ann Brim. Miss. Code Ann. 97-3-19 (2) (e) and -95 (Supp. 1989). West was brought to trial in the Circuit Court of Hinds County some two months later whereupon he was convicted of capital murder and sentenced to death. On December 4, 1985, this Court found reversible error in those proceedings, vacated West's conviction and sentence, and remanded for a new trial. West I, 485 So. 2d at 682, 690.

 On November 9, 1987, West again stood trial and once more the jury convicted West of capital murder and sentenced him to die. This appeal has followed.


 There is a point at the outset which should be noted, but need not detain us. Othie Lee West testified in his defense and completely denied the charges against him. West stated that on the afternoon in question he played pool with friends, drank a few beers thereafter and then watched a parade. After the parade he went back to his apartment to pick up some cigarettes and then went to the CB 40 Club. The reason he was out of breath and perspiring when the officers came in was "because I had been dancing."

 The witnesses for the prosecution testified quite to the contrary, as noted above. Suffice it to say that the evidence that West killed Brim is supported by more than substantial evidence and is well beyond our authority to disturb. See, e.q., Layne v. State, 542 So. 2d 237, 239 (Miss. 1989); Wash v. State, 521 So. 2d 890, 896 (Miss. 1988); McFee v. State, 511 So. 2d 130,

 133-34 (Miss. 1987); Fisher v. State 481 So. 2d 203, 212 (Miss. 1985). Whether West killed Brim while engaged in the commission of the crime of sexual battery is another matter to which the great bulk of the remainder of this opinion is directed.


 West argues that the evidence before the jury on the matter of the underlying felony of sexual battery was legally insufficient to support a verdict and that, accordingly, he should stand acquitted of the charge of capital murder, subject to retrial only for murder. In view of the evidentiary insufficiency he perceives, West insists he is entitled to double jeopardy protection from retrial on a charge of capital murder and, more importantly, that he is entitled to double jeopardy protection from exposure to the death penalty. West predicates the point on his motion that the evidence shows beyond doubt that Brim was dead prior to the sexual assault and, accordingly, that she was not a "person" upon whom sexual battery could be committed.

 The proof adduced at the second trial regarding the commission of a sexual battery was essentially the same as that presented in the first. The police collected an unknown fluid discovered underneath the body near the vaginal opening. Serological tests revealed that the substance was not seminal fluid. Dr. Galvez testified that he recovered a sticky substance from the body, outside the vaginal cavity. Serological tests upon that substance were not introduced into evidence.

 A "vaginal wash" collected during the autopsy revealed the presence of sperm and residual seminal fluid. Serological testing revealed secretor substances consistent with Mary Ann Brim's blood type only. The serologist deduced from this information that the person depositing the sperm was either (a) a secretor and of the same blood type as Brim or (b) a nonsecretor. Since West is a non-secretor, he could not be excluded as the source of the sperm and seminal fluid. Dr. Rodrigo Galvez, pathologist, and, Deborah Butler, the State Crime Lab serologist, each concluded that the presence of sperm indicated that the victim had experienced "recent" sexual intercourse before her death. The time-frame in which intercourse took place could not be further narrowed, however, as spermatazoa can survive for as long as seventy-two hours after ejaculation.

 The prosecution introduced the testimony of Theodore Lee, Brim's common law husband, to rebut any inference that he may have been the source of the sperm and semen found in the vaginal cavity of the victim. Although Lee could not remember where he lived in 1983, nor could he remember being interviewed by defense

 counsel four days earlier, he stated unequivocally that he had not engaged in intercourse with Brim for three or four days before her death. On cross-examination, Lee admitted that, in truth, he could not remember when he last engaged in sexual relations with Brim prior to her death.

 Each party produced expert pathology testimony to show how swiftly the victim died from the bullet wound. Dr. Galvez testified that his autopsy of the body of Mary Ann Brim revealed a single gunshot wound to the chest which had pierced the right atrium and exited through the left ventricle of her heart. He said that the trajectory of the fatal bullet had followed was in a generally downward path, from the front to the back of the victim. Dr. Galvez had no opinion as to Brim's position when shot - whether she was on her knees or even whether she was facing her assailant at the time. Such a chest wound, Dr. Galvez testified, would cause the heart to immediately cease pumping, rendering the victim unconscious within a second or two. Dr. Galvez was quick to point out, however, that the irreversible changes to the brain normally associated with death would not have occurred for five minutes, even after so traumatic a wound.

 The Circuit Court denied West's evidentiary point, and this Court's opinion in West I, stated "if it was a jury case in the first trial, it's a jury case in the second trial" . This view - that a jury issue in the first trial is a fortiori a jury issue in the second trial - is clearly wrong. A trial after remand is a trial de novo in every sense. Johnson v. State, 529 So. 2d 577, 579 (Miss. 1988). Where, as here, the evidence varies from that presented in the first trial, the circuit court should examine the evidence independent of what previously transpired. Gibson v. State, 503 So. 2d 230, 232 (Miss. 1987).

 First, as to West's contention that there was evidence insufficient to establish that a sexual assault occurred or to identify the defendant as the perpetrator, the point has been addressed in McFee v. State, 511 So. 2d 130 (Miss. 1987). There the court affirmed a rape conviction founded upon less physical evidence than that presented to the jury in today's case. In McFee, evidence of vaginal bruising found on a murder victim, together with a less-than-conclusive pubic hair match implicating the defendant was considered sufficient to support a conviction for rape. 511 So. 2d at 134. The Court placed great emphasis upon evidence that placed the defendant at the scene of the murder. "It may well be . . . that there are many other men whose pubic hairs possess the same characteristics as that found on the victim's body; yet, there is no evidence in the record that any of those others were present . . ." in the victim's home. Id. at 134.

 Next, West argues that Brim was dead at the time of the sexual assault. He says the evidence shows Brim was "dead" almost immediately after his entry into the apartment, citing Miss. Code Ann. 41-36-3 (Supp. 1981) which reads as follows:

 An individual who has sustained either (a) irreversible cessation of circulatory and respiratory functions or (b) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards. [Emphasis added]

 West I also relies on this statute. 485 So. 2d at 685.

 To establish the felony underlying the capital murder charge, the prosecution relies on our sexual battery statute which reads:

 A person is guilty of sexual battery if he or she engages in sexual penetration with:

 (a) Another person without his or her consent. Miss. Code Ann. 97-3-95 (Supp. 1980) (emphasis added). Of course, if the person is dead, she is no longer a "person" for purposes of the statute and there can be no sexual battery, or so West's reasoning proceeds. The argument has a certain logical allure, although West is hard-pressed to cite to any authority for it.

 We have found cases in other states which reason that, because the use of force is an essential element to the crime of rape, the use of deadly force, if done with the intent to coerce the victim into engaging in a sexual act, satisfies the factual nexus between the killing and the underlying felony to elevate the killing to a capital crime. The California Supreme Court rejected a theory identical to West's on the ground that such a result would appear to reward the use of deadly force. The court concluded:

 Where a defendant attempts to coerce his victim into intercourse with him, fails to accomplish his purpose while she is alive, and kills her to satisfy his desires with her corpse, the killing is first degree murder.

 People v. Goodridge, 76 Cal. Rptr. 421, 429, 452 P.2d 637, 645 (1969); see also State v. Brobeck, 751 S.W.2d 828, 832 (Tenn. 1988); Lipham v. State, 257 Ga. 808, 364 S.E.2d 840, 842 (1988); Commonwealth v. Tarver, 345 N.E.2d 671, 679 (Mass.1975).

 Mississippi law accepts a "one continuous transaction" rationale in capital cases. In Pickle v. State, 345 So. 2d 623 (Miss. 1977), we construed our capital murder statute and held that "the underlying crime begins where an indictable attempt is reached . . . ." 345 So. 2d at 626; see also Layne v. State, 542 So. 2d 237, 243, (Miss. 1989); Fisher v. State, 481 So. 2d 203, 212 (Miss. 1985); and Culberson v. State, 379 So. 2d 499, 503-04 (Miss. 1979). There is certainly evidence in this record from which the jury could have found Brim alive when West's assault reached this point. An indictment charging a killing occurring "while engaged in the commission of" one of the enumerated felonies includes the actions of the defendant leading up to the felony, the attempted felony, and flight from the scene of the felony. E.g., Neal v. State, 451 So. 2d 743, 757-58 (Miss. 1984); Pruett v. State, 431 So. 2d 1101, 1104-05 (Miss. 1983). The fact that the actual moment of the victim's death preceded consummation of the underlying felony does not vitiate the capital charge.

 V. A.

 At trial the prosecution presented Dr. Rodrigo Galvez who is board certified in pathology and psychiatry. Dr. Galvez first explained to the jury his findings from the autopsy he performed on Brim's body and offered his opinion that she had died of the bullet wound to the chest and had also had a recent sexual encounter. Coupled with the eye witness accounts of what happened on the evening of June 5, 1983, this fleshed out a factual scenario in which West had shot Brim, rendered her unconscious and dying, and had then sexually assaulted her.

 At this point the prosecution chose to elicit testimony from Dr. Galvez respecting his other field of expertise - psychiatry.

 Q. [BY MS. HEWES] Now, Dr. Galvez, I want you to switch professions here just a second and put on your psychiatrist's hat. Can you tell us whether or not there is a term for people who seek out or enjoy sex ...

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