Before McMILLIN, P.j., Herring, And Hinkebein, JJ.
The opinion of the court was delivered by: Hinkebein, J.
KENNETH FRANCES RABALAIS, APPELLANT v. STATE OF MISSISSIPPI, APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 09/13/95
TRIAL JUDGE: HON. JERRY OWEN TERRY SR.
COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF RAPE AND SENTENCED TO LIFE IMPRISONMENT
DISPOSITION AFFIRMED 4/7/98
MOTION FOR REHEARING FILED:
Kenneth Francis Rabalais [hereinafter Rabalais] was convicted of rape in the Hancock County Circuit Court. Aggrieved by his conviction Rabalais assigns the following error to the judgment of the circuit court:
I. WHETHER THE TRIAL COURT ERRED IN NOT ALLOWING APPOINTED DEFENSE COUNSEL, PATRICIA H. WILLIS, TO WITHDRAW FROM THE CASE DUE TO A POTENTIAL CONFLICT OF INTEREST DUE TO A WORKING RELATIONSHIP WITH THE ATTORNEY REPRESENTING DEFENDANT'S CHILDREN?
II. WHETHER THE TRIAL COURT ERRED IN NOT ALLOWING THE DEFENDANT TO QUESTION THE VENIRE CONCERNING REASONABLE DOUBT UNDER THE FACTS OF THIS CASE, DURING THE VOIR DIRE PROCESS?
III. WHETHER THE TRIAL COURT ERRED IN NOT SUPPRESSING THE DEFENDANT'S VOLUNTARY STATEMENT?
IV. WHETHER THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S REQUESTED JURY INSTRUCTION ON THE ELEMENT OF FORCE?
V. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST THAT THE JURY BE INSTRUCTED ON INCEST?
VI. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S ORE TENUS MOTION TO DISMISS THE INDICTMENTS AGAINST HIM BECAUSE DEFENDANT HAD NOT BEEN AFFORDED HIS CONSTITUTIONAL RIGHTS TO RECEIVE A SPEEDY TRIAL?
VII. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO EXCLUDE EVIDENCE OF OTHER SEXUAL ACTS?
Holding Rabalais' assignments of error to be without merit, we affirm the judgment of the circuit court.
On August 25, 1994 Rabalais, his wife, and their nine children were living in a three bedroom mobile home in Hancock County, Mississippi. At around 2:00 a.m. that morning Rabalais and his sixteen-year-old daughter N.R.*fn1 [hereinafter victim], along with one of her sisters, were sleeping on the same bed in one of the trailer's bedrooms. Rabalais' wife and the other children were asleep in another area of the mobile home. At trial the victim testified that she awoke in the early morning hours because she was "burning down there... in [her] private parts" and that her father was on top of her. The victim stated that by "burning" she meant that her father's penis was in her vagina, causing her pain. The victim stated that she immediately began crying and screaming for her mother. The victim further testified that while calling out for her mother she attempted to get her father off of her, but that he was holding her down and pushing her head against the bedroom wall as she tried to escape. The victim eventually got away from her father and went to the bathroom where she cleaned herself.
The victim testified that upon exiting the bathroom she went to the living room to sleep with her mother and other siblings. The victim, however, stated that her father came into the living room, grabbed her by her hair, and drug her back to the bedroom. The victim testified that she, her father, and a younger sister remained in the bedroom for the remainder of the night without further incident. At trial Rabalais admitted that he had sexual intercourse with the victim both on the night in question and on prior occasions, but that the sex was consensual and not rape. Rabalais also admitted to having pushed the victim's head against the wall after she began to scream for her mother, but that he did so "because [he] didn't want her to tell... she had never told before, you know." Rabalais testified that the victim was receptive to his sexual advances and that "she would hold me and caress me, and I would caress her and it happened." Despite the victim's allegations, Rabalais steadfastly maintained that he did not rape her on the night in question and that "we had intercourse like we had before... [s]he never hollered before... [a]nd I never forced her to have intercourse with me at any time."
The victim, her sister, and her mother subsequently reported this incident, along with other abuse allegedly perpetrated by Rabalais, to a social worker. Rabalais was arrested, indicted, and tried for rape. It is ...