Before Pittman, P.j., Banks And Waller, JJ.
The opinion of the court was delivered by: Banks, Justice
DATE OF JUDGMENT: 5/31/96
TRIAL JUDGE: HON. WARREN ASHLEY HINES
COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION REVERSED AND REMANDED - 6/11/98
MOTION FOR REHEARING FILED:
¶1. This appeal challenges the validity of convictions for burglary of an occupied dwelling, attempted rape and aggravated assault. After careful review of the circuit court proceedings, we conclude that the court committed reversible error in failing to allow the defendant to make part of his own closing argument. In addition, the jury received a deficient instruction on the offense of attempted rape, constituting an independent ground for reversal on that conviction.
¶2. On November 18, 1995, at approximately 1:23 a.m., Sharon Perkins was lying on a couch in the front room of her apartment. A man punched his hand through the plastic covering that she had placed over a missing panel of glass on her front door, unlocked the door and entered Ms. Perkins' apartment. She saw him immediately, jumped up onto her knees on the couch and exclaimed, "Who are you? What in the hell! Who the hell are you? Where the hell you going? You in the wrong place!" The man closed the door, then went to the couch and "straddled" Ms. Perkins. As she attempted to push the man off of her she shouted for her 11-year old son, Eric, who ran in and jumped on the man's back. The man swung at Eric, who jumped back and rushed out the front door.
¶3. Ms. Perkins, momentarily free from her attacker, did not leave the apartment because she feared for her two other children, aged five and six, who were asleep in another room. She ran instead toward the bathroom to find something with which to protect herself. In the meantime, her attacker had retrieved a knife from the kitchen. He grabbed Ms. Perkins again and dragged her back to the couch, where he pinned her with his knees. He stripped off her gown as he was jabbing at her with the knife, and repeatedly told her to "shut up." The attacker placed his hands all over her body, including her breasts and vaginal area. During the struggle Ms. Perkins received deep cuts on her left hand. She also received superficial lacerations on her right ear, right hand and left breast. She was still fighting her attacker when her son came back into the room and said, "Mama, the police coming." At that point, the man jumped up and ran from the apartment.
¶4. After being treated at the hospital, Ms. Perkins went to the police station and described her attacker. A composite sketch was done. She then picked the defendant's picture from a photo line-up. Ms. Perkins testified at trial that lights were on in her apartment and that she saw her attacker's face and the clothes he was wearing. She stated that the attacker wore a Seagram's Gin hat on the morning in question, and that it fell off during the struggle and was left at the scene of the crime. Ms. Perkins also testified that she had seen the man before but did not know him personally. Ms. Perkins identified the defendant in court as the man who broke into her apartment and attacked her.
¶5. Photographs taken of the crime scene on the night of the attack could not be developed properly, nor could fingerprints be obtained. Police never recovered the nightgown, the Seagram's Gin hat or the knife because the investigator in charge, Sergeant Lester Carter, did not visit the scene until two days later, by which time the victim's father had cleared all of her belongings from the apartment.
¶6. After the close of the State's case-in-chief Armstead moved for a directed verdict on the ground that the State had failed to make a prima facie case against him. The court denied the motion. Thereafter, the defendant took the stand and claimed that Ms. Perkins had mistakenly identified him as the attacker. He claimed that he had gotten intoxicated and spent the entire night of the incident asleep on a couch at the home of his sister, Brenda Sparks. His two sisters confirmed that on a Friday night prior to his arrest he had come to their home sometime between 7:00 p.m. and 9:00 p.m. and had slept till the next day. Neither of his sisters could say with any certainty, however, that Armstead had spent the night on November 17-18, 1995.
¶7. After a one-day jury trial on May 28, 1996, Armstead was convicted of the crimes of burglary of an occupied dwelling, attempted rape and aggravated assault. On May 31, 1996, he was sentenced to fifteen (15) years for burglary, ten (10) years for attempted rape and twenty (20) years for aggravated assault, with all sentences to be served consecutively. On June 18, 1996, Armstead filed a Motion for Judgment Notwithstanding the Verdict or in the Alternative for a New Trial. On the same day, the circuit court overruled the motion and Armstead filed his Notice of Appeal.
¶8. Armstead contends that the trial court erred when it denied his motion for a directed verdict. He also claims that the verdict was against the overwhelming weight of the evidence and that the State failed to prove that he was guilty beyond a reasonable doubt. We treat this assignment of error as an appeal from the trial court's denial of Armstead's alternative post-trial motions for judgment of acquittal notwithstanding the verdict or for a new trial. See May v. State, 460 So. 2d 778, 780 (Miss. 1984). In making his arguments, Armstead maintains (1) that his conviction is based upon the uncorroborated testimony of the victim, Sharon Perkins (2) that the victim was mistaken in her identification of Roosevelt Armstead as her attacker, and (3) that the State failed to prove that Armstead designed and endeavored to rape Ms. Perkins.
¶9. It has long been held in Mississippi "that a conviction for rape may rest on the uncorroborated testimony of the person alleged to have been raped, but it should always be scrutinized with caution; and where there is much in the facts and circumstances in evidence to discredit her testimony, another jury should be permitted to pass thereon." Richardson v. State, 196 Miss. 560, 564, 17 So. 2d 799, 800 (1944). See also Goode v. State, 245 Miss. 391, 394, 146 So. 2d 74, 75 (1962); Killingsworth v. State, 374 So. 2d 221, 223 (Miss. 1979); Goss v. State, 413 So. 2d 1033, 1034 (Miss. 1982).
¶10. Armstead argues that Sharon Perkins did not have sufficient opportunity to identify him on the night she was attacked. The well-known factors for determining the likelihood of misidentification are outlined by the United States ...