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McLemore v. State

April 09, 1998

JOE W. MCLEMORE, JR.
v.
STATE OF MISSISSIPPI



Before Prather, C.j., Roberts And Mills, JJ.

The opinion of the court was delivered by: Roberts, Justice, For The Court:

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A

DATE OF JUDGMENT: 08/12/96

TRIAL JUDGE: HON. MARCUS D. GORDON

COURT FROM WHICH APPEALED: NEWTON COUNTY CIRCUIT COURT

BY: W. GLENN WATTS

DISTRICT ATTORNEY: KEN TURNER

NATURE OF THE CASE: CRIMINAL - FELONY

STATEMENT OF THE CASE

Joe W. McLemore, Jr. was tried and found guilty of aggravated assault and armed robbery. He was tried before a Newton County Circuit Court jury, the Honorable Marcus Gordon presiding on August 5 and 12, 1996. McLemore was given a sentence of twenty (20) and twenty-five (25) years confinement respectively for the said crimes without parole as an habitual offender in the custody of the Mississippi Department of Corrections. McLemore filed a Motion for Judgment Notwithstanding the Verdict, or in the Alternative a New Trial, both of which were denied. McLemore subsequently filed a timely Notice of Appeal to this Court requesting review of the following issues:

I. WHETHER THE DNA EVIDENCE SHOULD HAVE BEEN ADMITTED?

II. WHETHER MCLEMORE RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL?

III. WHETHER THE COURT ERRED IN OVERRULING MCLEMORE'S OBJECTION TO THE QUESTION OF STATISTICAL PROBABILITY APPLICATION TO THE POPULATION OF SCOTT COUNTY, MISSISSIPPI?

STATEMENT OF THE FACTS

Nadine Walker testified that on December 26, 1991, she was working at Freddie Rogers Service Station and Grocery in Scott County, Mississippi. A customer came in wearing blue jeans, tennis shoes and a pink shirt. He inquired about buying minnows. When she went to get a minnow bucket, he reached around and cut her face. It was a deep cut, causing her to have sutures, and cutting some nerves in her face. He proceeded to stab Walker again in the chest with a pocket knife.

The assailant then went to open the cash register. When he failed to open the cash register, Walker offered to open it for him. After she opened the cash register, he grabbed the money and stabbed her a third time. This time he stabbed Walker once in the side of her neck and in her back several times. She was able to see an automobile outside, as well as get a good look at her assailant while near him under the lighting conditions in the store.

After she was out of the hospital, Walker identified McLemore's photograph out of a group of seven pictures she was shown. They were all white males of roughly the same age with no markings on their photographs. She also identified McLemore in the courtroom as the person who had stabbed her and robbed the cash register at the store where she was working. She testified that she would never forget the face of her assailant.

During the trial, Officer Jerry McNeece, Deputy Sheriff of Scott County, testified that he was involved in a search for the car that Walker saw outside of the store at the time she was assaulted and robbed. McNeece found a car fitting the description Walker had given--light brown or beige--with some money laying in the front seat. There were blood stains on the money as well as inside the car and on one of the doors. After searching the woods, the officials found McLemore. He was wearing blood stained jeans and tennis shoes.

The blood stained jeans were removed and placed in a bag. McNeece also testified that he was present when McLemore was strip searched and his blue jeans removed. McNeece further testified that there were no wounds on McLemore's body that would account for the blood on his jeans. He also testified that Walker identified the photograph of McLemore shown to her without any suggestions being made. Lastly, McNeece testified that blood samples were taken from both Walker and McLemore at the Lackey Hospital in his presence. He stated that he transported the bags containing the blood to the Crime Lab in Meridian and later brought them back from the Crime Lab.

Lara Aria, a forensic serologist with the Mississippi Crime Lab, testified to having been given the blood samples of Walker and McLemore. She determined by scientific test that they both were blood type O. She had also been given a pair of blue jeans with blood stains on them. An objection was made to the introduction of the blue jeans on grounds of a lack of proper chain of custody. The trial court overruled that objection. Aria determined that the blood stains on the jeans were also blood type O.

When a request for DNA analysis was made, Aria had the swatches from the blood on the jeans sent to Cellmark Diagnostics in Germantown, Maryland. She also sent a bloodstain from the tennis shoes. Dr. Robin Cotten, a molecular biologist from Cellmark, testified to doing a "polymerase chain reaction" analysis (hereinafter "PCR") of the blood samples sent to her for analysis. This method was used since there was only a small amount of blood available for use. The results of the analysis were that McLemore could be excluded as a source of the blood found on the jeans. Walker, on the other hand, could not be excluded as a source of the blood. An objection was made by McLemore's attorney to testimony about Walker not being excluded as a possible contributor of ...


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