DATE OF JUDGMENT: 07/10/95 TRIAL JUDGE: HON. RICHARD WAYNE MCKENZIE COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
BY: SCOTT STUART DISTRICT ATTORNEY: E. LINDSAY CARTER NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: RAPE HABITUAL OFFENDER: SENTENCED TO SERVE A TERM OF 45 YRS IN THE MDOC WITHOUT THE BENEFIT OF PAROLE DISPOSITION AFFIRMED - 1/27/98 MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED:
Before McMILLIN, P.j., King, And Payne, JJ.
The opinion of the court was delivered by: McMILLIN, P.j., For The Court:
Clint Trace Hunt has appealed his conviction of rape returned by a jury in the Circuit Court of Forrest County. He raises four issues in this appeal, three of which attack the finding of guilt and one attacking the sentence as being unduly severe. We find none of these issues to have merit. We, therefore, affirm the conviction and judgment of sentence.
The State's proof indicated that Hunt came to his victim's apartment in Hattiesburg in the early morning hours and knocked on her door, claiming he was trying to find a friend who resided at the complex. After using several subterfuges in an attempt to be voluntarily admitted to the apartment, Hunt finally forced his way in and raped his victim. Scientific evidence was presented by the State that linked DNA material found on the victim's clothing to Hunt with a match testified to be one in five hundred million.
Hunt, testifying in his defense, claimed that the sexual encounter had, in fact, occurred two days earlier when the two had met in a local bar and had engaged in consensual intercourse in his vehicle. He claimed that he knew the prosecuting witness only by a fictitious first name she had used during their encounter, and that he had picked her up from the apartment parking lot on instructions she gave him before she left the bar. He claimed never to have been in the victim's apartment or even to have seen the woman before or after their encounter in the bar.
The jury returned a verdict of guilty but declined the opportunity to set Hunt's sentence at life. The trial court set the sentence at forty-five years, and because Hunt was also adjudicated to be a habitual offender under section 99-19-81 of the Mississippi Code of 1972, the judgment ordered the sentence to be served without the possibility of parole.
We will now consider Hunt's four issues raised on appeal in the order in which they were presented in his brief.
Pre-Trial Lineup and In-Court Identification of Hunt
Hunt complains of the trial court's refusal to suppress evidence that the victim had identified him as her assailant in a photographic lineup. The proof showed that the lineup was repeated on three separate occasions during the course of the investigation of the crime and the subsequent preparation for trial. The victim selected Hunt from among the photographs in each instance. Thereafter, the victim was permitted to make an in-court identification of Hunt before the jury as her assailant.
In actuality, the State did not put on proof of the photographic lineup in its case in chief. Rather, Hunt's counsel raised the issue of the lineup during cross-examination of the victim. Therefore, Hunt's issue as set out in his brief is technically defective. Evidence of a witness's ability to pick the defendant in an out-of-court line-up, on the one hand, and permitting that witness to make an in-court identification of the defendant, on the other, raise two separate evidentiary considerations. In the proper case, the trial court may suppress the out-of-court identification as being unduly suggestive, yet nevertheless permit an in-court identification. See Neil v Biggers, 409 U.S. 188, 197-98 (1972). Thus, the actual issue raised should have been whether the pre-trial lineup procedure was so impermissibly suggestive that the victim's in-court identification was tainted to the extent that it should have not been allowed. Such a ruling would, in this case, have to be based upon the ...