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Pace v. State

Supreme Court of Mississippi

May 10, 2018

DAMION LAFREDRICK PACE a/k/a DAMION PACE a/k/a DAMION L. PACE a/k/a DAMIAN LAFREDRICK PACE
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 08/23/2011

          SCOTT COUNTY CIRCUIT COURT HON. MARCUS D. GORDON JUDGE

          TRIAL COURT ATTORNEYS: ALI MUHAMMAD SHAMSIDDEEN MARK SHELDON DUNCAN STEVEN D. KILGORE

          ATTORNEY FOR APPELLANT: JARED K. TOMLINSON DAMION L. PACE, PRO SE

          ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLINTON JASON L. DAVIS

          DISTRICT ATTORNEY: MARK SHELDON DUNCAN

          BEFORE KITCHENS, P.J., KING AND COLEMAN, JJ.

          KITCHENS, PRESIDING, JUSTICE

         ¶1. Damion Lafrederick Pace was indicted for one count of burglary, two counts of kidnapping, one count of forcible rape, and one count of extortion. All five counts concerned events that occurred on the night of April 14, 2010. The jury was instructed on the elements of burglary, kidnapping, forcible rape, and extortion. The jury acquitted Pace of forcible rape, but convicted him of one count of extortion, two counts of kidnapping, and one count of robbery, a crime for which Pace had not been indicted. The Circuit Court of Scott County sentenced him to twenty years for robbery, twenty years for each of the kidnappings, and ten years for extortion, with the sentences to run consecutively.

         ¶2. Pace appeals, arguing that the circuit court erred by denying his motion for a directed verdict and that he received ineffective assistance of counsel. We hold that, because Pace was not indicted for robbery and robbery is not a lesser-included offense of the indicted crime of burglary, the trial court's entry of a judgment of conviction of robbery was a plain error that requires vacation of the robbery conviction and sentence. Therefore, we vacate and render the robbery conviction and sentence. We find that Pace's other issues are without merit.

         FACTS

         ¶3. Jessica Goodwin provided most of the testimony against Pace. Goodwin testified that, on April 14, 2010, she was living in the rural Lake community in Scott County with her four-month-old daughter, Melissa, [1] and Melissa's father, who was not present that night.[2] At about 10:00 or 10:15 p.m., Goodwin was preparing to bathe Melissa when she was startled by a masked man standing in the living room holding a gun. The man had entered through the unlocked back door. He demanded money and guns and, when Goodwin said she had none to give him, he forced her to rummage through her belongings. Later, this man was identified as Darrin Wilson. During the search, another masked and armed man, later identified as Devonte Hughes, appeared. Hughes and Wilson searched the house for items to steal. Then Wilson told Goodwin that she was coming with them.

         ¶4. At gunpoint, Wilson and Hughes forced Goodwin, holding Melissa, out the back door and down the road, where a car was parked in the bushes. Wilson instructed Goodwin to get in the back seat. Then he got in the driver's seat and Hughes occupied the front passenger's seat. They rode back to Goodwin's house and, as they were leaving, she saw Pace, whom she recognized as a former high school classmate, standing in front of her house. Pace got into the back seat with her and slipped a mask over his face. Goodwin testified that, as they drove away, Hughes said "get the TV, " but Wilson said "no" and kept driving. As they turned down another road, Pace leaned forward and announced that he was ready to have sex.

         ¶5. Then, Wilson asked Goodwin whether she could obtain money, and Goodwin said she thought she could ask her father. Hughes, who had taken Goodwin's cell phone from the house, passed it to her, and she telephoned her stepmother, Angela Goodwin. Wilson told Goodwin to say that he wanted $2, 000 and not to contact the police or he would kill her and her baby. Goodwin testified that she complied, but she had trouble communicating because Melissa was crying loudly. Angela Goodwin said that her stepdaughter was hysterical and Melissa was crying so loudly that she could barely understand what Jessica Goodwin was saying, so she handed the phone to Goodwin's father, Tim Goodwin. Tim Goodwin put the speaker phone on, and he and Angela heard Jessica Goodwin say that the men wanted $2, 000 or she and Melissa would be killed. Then, Wilson demanded the phone from Goodwin and told her to give Melissa to Pace and get out of the car. She complied. Tim Goodwin told Wilson that he did not have $2, 000, so Wilson asked whether he wanted Goodwin and Melissa returned. Tim Goodwin told Wilson he had $500, and Wilson instructed him to put it in a paper bag and place it at the end of Good Hope Road. Tim Goodwin testified that he complied with this demand.

         ¶6. Jessica Goodwin testified that, when the call ended, Wilson exited the car and she asked him if she could hold Melissa, who was crying. Wilson allowed her to take Melissa from Pace. Then, Wilson began touching Goodwin and she said "please don't do it." But Wilson forced her to turn around, pushed her against the car, and raped her at gunpoint as she held Melissa and the other two men watched. Then, Pace raped Goodwin against the car as she screamed, "please, no." Wilson then asked Hughes if he wanted to have sex with her, but he declined, so Wilson ordered Goodwin to pull up her pants and get in the car.

         ¶7. Jessica Goodwin testified that they all got back in the car and Wilson drove to Johnstontown Road, where he stopped and let Pace and Hughes out. Then, Wilson drove farther down the road to a trailer home, parked in the driveway, and exited the vehicle. Goodwin observed several people outside the trailer. Wilson was gone for five to ten minutes, during which time Goodwin contemplated running away with Melissa, but decided it was too dangerous due to the high probability that they would be captured again. When Wilson returned, he telephoned Jessica Goodwin's father, who said he had dropped off the money. Then, Wilson drove Goodwin and Melissa to the end of Good Hope Road, where he took possession of a brown paper bag with $500 inside.

         ¶8. After collecting the money, Wilson drove Jessica Goodwin and Melissa back to the residence on Johnstontown Road, then to a driveway that led to a pasture. He ordered Goodwin to get out of the car, whereupon she exited the car with Melissa, and Hughes walked toward them from the woods. Then, Wilson walked away in the direction from which Hughes had arrived. Hughes told Goodwin that things had gone too far and that it wasn't supposed to be like this. He also said that Wilson had said he was going to kill them, but Hughes would not let that happen. A few minutes later, Wilson returned with Pace. Wilson held a plastic bottle filled with liquid and ordered Goodwin to use it as a douche. Goodwin testified that when she complied, the liquid burned her private area. Wilson also demanded Goodwin's underwear, which she gave him. Then, everyone got back into the car, and Wilson called Goodwin's father and told him where he could find Goodwin and Melissa. He dropped off Goodwin and her baby one road away from her home, and her father promptly picked them up. Goodwin's father drove them home, then her stepmother immediately took them to a hospital, where Goodwin underwent a sexual assault examination. Goodwin testified that her television set had been removed from her home.

         ¶9. The next day, Pace was arrested, and, on April 16, 2010, he gave a statement to Officers Billy Patrick and Willie Anderson of the Scott County Sheriff's Department. Pace said that he had stayed outside while Wilson and Hughes went into Goodwin's house. He heard a woman's screams coming from inside the house, then Wilson emerged from the house holding Goodwin and her baby at gunpoint. Hughes brought a television set and a video game console out of the house and secreted them on the roadside. Then, Wilson and Hughes got into the car and picked up Pace. Pace said that he whispered to Wilson and Hughes that he and Jessica Goodwin knew each other from school. Wilson parked in a pasture and called Goodwin's father to ask for money for the return of Goodwin and Melissa. Pace said that Wilson demanded $2, 000 but "came down to" $1, 000 and told Goodwin's father where to drop the money. Then, Wilson ordered Goodwin out of the car, and she handed Melissa to Pace, but when the baby did not stop crying, Pace returned her to Goodwin. Pace said that Wilson raped Goodwin as she held the baby, then "made me have sex with the lady also at gunpoint."

         ¶10. Pace said that, next, they drove to Johnstontown Road. Hughes and Pace exited the car and walked to Bridget Wilson's house, then Hughes borrowed a car from Pace's cousin and picked up the television set and video game console. When Hughes returned to Bridget Wilson's residence, Wilson, who had arrived at some point, said he was going to kill Jessica Goodwin. Resolved to prevent Wilson from killing her, Pace and Hughes got back into the car with Wilson and Goodwin. Wilson drove to a remote area and then Pace and Wilson left and obtained a bottle of vinegar from Wilson's mother's house. When they returned, Wilson ordered Goodwin to wash with it. When they got back into the car, Pace told Wilson to drop Goodwin off, and Wilson called Goodwin's father and told him where he had left her.

         ¶11. Pace presented the testimony of several witnesses including himself. Kathryn Moyse was a forensic DNA analyst who had compared DNA from the vaginal swab from Goodwin's sexual assault kit with DNA from buccal (oral) swabs taken from Wilson, Hughes, and Pace. Moyse testified that a single source profile was obtained from semen on the vaginal swab, indicating that the semen on the swab was from a single person, and she had determined that this single source was Darrin Wilson.

         ¶12. Darrin Wilson, who was incarcerated for his crimes at the time of Pace's trial, testified that he had lived on Johnstontown Road all his life and had grown up with Pace. He testified that he and Jessica Goodwin had known each other for several months before the night in question and, in fact, met occasionally in secret to do drugs together. He testified that, the night of April 14, 2010, he and Goodwin had concocted and executed a plan to extort money from her father with the object of buying crystal methamphetamine. He also testified that he had consensual sex with Goodwin that night, but that Pace never had sex with her. At some point, he went to Bridget Wilson's house and talked with Pace and Hughes. On cross examination, he was asked about the baby, and he testified that Goodwin had the baby with her the entire time because she routinely brought the baby when they met to do drugs. He testified that Pace and Hughes had been with them for part of the night, but they had not known of the extortion plan. He denied that Hughes had taken Goodwin's television set or video game console. Wilson testified that, after he and Goodwin had gotten the money, Goodwin saw a car she thought was her boyfriend's and demanded to be dropped off immediately. Wilson also testified that he had been listening on an open cell phone line during Pace's police interview, and he never heard Pace confess. Instead, he overheard the officers promise Pace that if he signed a prewritten statement, he could go home.

         ¶13. Pace testified in his own defense, and his testimony mirrored the version of events provided by Wilson. Pace testified that he was eighteen years old on the night of the alleged crimes. He said that he and Hughes had accompanied Wilson to a woman's house. Wilson went inside and later emerged with Goodwin and her baby. Then, they went to Bridget Wilson's house, where Wilson had left Hughes and Pace. Pace testified that he never saw Wilson with a gun, and he denied that he, Pace, ever had sex with Goodwin. Pace denied that Hughes had removed a television set or video game console from Goodwin's house. He said he was not involved in the conversation with Goodwin's father about money. Further, Pace testified, he never had confessed, and ...


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