Prather, C.j., Banks And Waller, JJ.
The opinion of the court was delivered by: Banks, Justice, For The Court
DATE OF JUDGMENT: 11/01/96
TRIAL JUDGE: HON. MIKE SMITH
COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: DUNN LAMPTON
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. This case is before the Court on appeal from the Lincoln County Circuit Court, where appellant was convicted of sexual battery and burglary of an inhabited dwelling. The issues presented on appeal are whether the trial court erred in denying appellant's motion for a continuance and for a competency hearing, whether the expert testimony of appellant's psychologist should have been excluded, and whether confession by appellant was unconstitutionally obtained. We conclude the court committed no error mandating reversal and affirm the appellant's conviction and sentence.
¶2. On September 7, 1995, eighty-four year old Eliza Harris was raped by the appellant John Pierre Richardson. Following the assault, Mrs. Harris ran from her house, calling for help. Three people, riding by in a car, heard her cries for help. They stopped and found the elderly lady on the ground. She was crying and screaming "he raped me." As they helped the lady, one of the passers-by, Donald Haney, saw a black male running from inside the house to the back of the house. Haney and his friend, William Smith, chased the black man. They were able to catch the man. He told them he was going for help for Mrs. Harris. Haney told the man to go back to Mrs. Harris' house with them. As they walked back towards Mrs. Harris' house, Haney left the group to call the police. Soon thereafter, police officers arrived and arrested the man. He was identified as John Pierre Richardson. While in custody, Richardson gave a statement in which he admitted that he raped the elderly lady. This statement was played for the jury, but is not a part of the record. At trial, Mrs. Harris testified that Richardson knocked on her door and asked about her grandson. He then forced his way in and told her that he wanted sex. Mrs. Harris told him that she was eighty- four years old - too old for sex. Richardson replied, "I likes old womens."
¶3. Tests of evidence gathered at the crime scene - bed linen and the victim's clothing - did not contain any sperm belonging to Richardson. There was sperm found on a towel; however, the serologist testified it did not come from Richardson.
¶4. There was a suppression hearing held to determine whether Richardson was capable of giving a valid waiver of rights. Officer Berry testified that Richardson was not threatened, coerced or promised anything while being interrogated. The officer also testified that Richardson seemed to understand his rights. The trial court listened to the taped recording of Richardson's interrogation and concluded that the officer did not offer Richardson help in exchange for his confession. Thus, he ruled that Richardson "made a knowingly, intelligently and freely waiver of his rights to silence and to counsel by reading the warning and signing the waiver of rights forms as recorded on the audio tape."
¶5. At this juncture, the defense sought to introduce the testimony of Dr. Allen Hearne to show that Richardson did not possess the mental ability to give a valid waiver. Because the doctor was not listed as a witness prior to trial, the Judge refused to allow him to testify, stating thusly: The defendant is evidently, and he or his mother, have evidently decided that they were smarter than learned defense counsel. I am not allowing Dr. Hearne to testify as a sanction against the defendant. For this reason we are not going by the criteria for the Box case regarding surprise testimony....
¶6. A jury found Richardson guilty of sexual battery as alleged in count I of the indictment and guilty of count II, burglary of an inhabited dwelling. The Judge sentenced him to thirty years on count I - fifteen years to be served day for day and the remainder to be served on post-release supervision. As to count II, he received fifteen years - seven to be served day for day and the remainder on post-release supervision. The sentences run consecutively.
¶7. Following his convictions and sentence, Richardson filed a "Motion to Set Aside Sentence and Motion for Judgment of Acquittal Notwithstanding the Verdict of the Jury" and a "Motion for a New Trial." These motions were denied. Aggrieved, he appeals to this Court for relief.
¶8. In his first assignment of error, Richardson alleges the trial court abused its discretion in denying his motion for continuance. Prior to the commencement of trial, counsel for Richardson moved for a continuance on the ground that he received from Richardson the morning of trial a letter from Dr. Allen K. Hearne, a clinical psychologist, in which the doctor opined that Richardson knew the difference between right and wrong, that he understood the nature of the legal proceedings against him now but possibly not in September 1995 and that he doubted Richardson's ability to assist in his own defense with a reasonable degree of rational understanding based upon his IQ, reading and spelling scores of.09,.03 and.09 percents.
¶9. The State responded that Richardson had been examined by the state hospital and that doctor's opinion was that to a degree of reasonable medical certainty Richardson was competent at the time he committed the offense and able to assist in his own defense. Also the State pointed out that defense counsel could have filed a motion for psychological examination prior to the date of trial and that the court did, in fact, grant defense's motion ...