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Chapman v. State

Supreme Court of Mississippi, En Banc

August 9, 2018

RICHARD CHAPMAN
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 10/19/2016

          HINDS COUNTY CIRCUIT COURT HON. JEFF WEILL, SR., JUDGE

          TRIAL COURT ATTORNEYS: CHRISTOPHER SCOTT ROUTH JAMIE KELLY McBRIDE

          ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF GEORGE T. HOLMES

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE

          BEAM, JUSTICE

         ¶1. This appeal arises from the Hinds County Circuit Court's order granting in part Richard Chapman's motion for post-conviction relief (PCR), following this Court's mandate in Chapman v. State, 167 So.3d 1170 (Miss. 2015) (Chapman IV). There, in a five-to-four decision, a majority of this Court found that no direct appeal was taken from Chapman's 1982 conviction for rape and life sentence, and ordered the trial court to conduct an evidentiary hearing to determine if the record and transcript from the jury trial still existed, and if not, whether something equivalent could be reconstructed. Id. at 1175. After parties reconstructed much of the record on remand, the trial court granted Chapman leave to file an out-of-time appeal from his 1982 rape conviction and life sentence.[1]

         ¶2. Chapman appeals from that ruling, claiming the record is less than adequate to allow an acceptable appeal to be prepared. Chapman maintains his trial counsel was constitutionally deficient for failing to file an appeal, or even a notice of appeal, even though Chapman claims he paid counsel to do so. Chapman also claims a life sentence imposed on a sixteen-year-old for a crime that was not a homicide constitutes cruel and unusual punishment. Chapman submits his 1982 rape conviction should be reversed and this cause dismissed or, in the alternative, remanded for a new trial.

         ¶3. The State contends Chapman's out-of-time appeal is devoid of reversible error and argues Chapman's rape conviction and life sentence imposed by the jury should be affirmed.

         ¶4. Having reviewed the reconstructed record, we find that Chapman is not entitled to an out-of-time appeal. As will be explained, we confirm what Justice Coleman surmised in his dissent in Chapman IV was likely the case: (1) Chapman's trial record was not destroyed, as Chapman has claimed throughout his multiple PCR petitions; and (2) Chapman had three years from April 17, 1984, when Mississippi's Uniform Post-Conviction Collateral Relief Act (UPCCRA) went into effect, to petition for an out-of-time appeal but failed to do so. See Chapman IV, 167 So.3d at 1177-80 (Coleman, J., dissenting); see also former Mississippi Code Section 99-39-5(1)(h), providing grounds for relief to "[a]ny prisoner in custody under sentence of a court of record of the state of Mississippi who claims: . . . he is entitled to an out of time appeal."[2]

         ¶5. The reconstructed record plainly shows that Chapman was aware as late as August 1983 that a direct appeal had not been filed after his 1982 rape conviction. And even though the UPCCRA had not yet been enacted, Chapman had a judicial remedy available to him, as set forth by this Court in 1977, upon which Chapman also failed to act. See Jones v. State, 346 So.2d 376 (Miss. 1977) (Jones I) and Jones v. State, 355 So.2d 89 (Miss. 1978) (Jones II).

         PROCEDURAL BACKGROUND

         ¶6. Chapman was indicted by a Hinds County grand jury on August 10, 1981, for rape and armed robbery. The rape charge was tried before a Hinds County jury in January 1982. Chapman was represented at trial by Hermel Johnson. Former Mississippi Supreme Court Justice Reuben Anderson, then serving as a Hinds County circuit judge, presided over Chapman's trial. No direct appeal was taken afterward.

         ¶7. In September 1982, Chapman pleaded guilty to robbery (without a firearm), after having been charged with robbing the rape victim with a firearm. Chapman was sentenced to ten years in the custody of Mississippi Department of Corrections (MDOC), with six years suspended, four years to serve, and five years on supervised probation.

         ¶8. The reconstructed record shows that, in August 1983, former Hinds County Circuit Judge William Coleman sent Chapman the following letter:

Dear Mr. Chapman:
The index card in the Court Administrator's office shows that you were convicted of rape and received a life sentence on January 27, 1982 and that you entered a plea of guilty on September 22, 1982 to robbery without a firearm and received a ten year sentence, six years suspended on five year supervised probation and four years to serve.
After your letter was received by Judge [Reuben] Anderson, the Court Administrator checked with Mr. Johnson, your attorney, and he advised that it was part of the plea bargaining agreement on the robbery charge that you would not appeal the rape charge. I have no way of knowing if this is correct or not.
This Court has lost jurisdiction and, if it is your intention to appeal, you must file the proper papers with the Mississippi Supreme Court.
Sincerely yours,
William F. Coleman Circuit Judge

         ¶9. In April 1985, Judge Coleman entered an order allowing the following evidence used in Chapman's 1982 rape trial to be turned over or destroyed: saliva sample, blood sample, rape pack, two pairs of underwear, one blue shirt, one pair of grey pants, and one "checked sheet."

         ¶10. In 2005, the Innocence Project filed a motion in Hinds County Circuit Court on Chapman's behalf for "Preservation and Production of Evidence." Former Hinds County Circuit Judge Swan Yerger ordered the University of Mississippi Medical Center (UMMC), the Mississippi State Crime Laboratory, the Jackson Police Department (JPD), the Hinds County Sheriff's Office, the Hinds County District Attorney's Office, the Mississippi Crime Laboratory, and the Hinds County Circuit Clerk's Office to search for biological evidence relating to Chapman's 1982 rape prosecution. The trial court also directed each entity to provide the status and disposition of any biological evidence and to preserve such evidence until further notice.

         ¶11. The Hinds County District Attorney's Office responded to the circuit court's order that all evidence from Chapman's rape case had been destroyed pursuant to an April 1985 court order. Chapman v. State, 47 So.3d 203, 205 (Miss. Ct. App. 2010) (Chapman I).

         ¶12. In 2006, Chapman filed a pro se PCR motion alleging: (1) innocence regarding the rape conviction; (2) the trial court's failure to abide by Uniform Rule of Circuit and County Court Practice 8.04 in accepting Chapman's guilty plea for robbery; (3) the State's failure to preserve exculpatory evidence and the trial transcript; and (4) ineffective assistance of counsel. Id. Chapman filed an amended motion, alleging also: (1) his indictments in both the rape and robbery cases were defective; (2) the jury in his rape trial was not drawn from a fair cross-section of the community; and (3) he is serving an illegal sentence. Id. at 205-06. The trial court dismissed Chapman's PCR motion, finding the motion was time-barred under the three-year statute of limitation provided by Mississippi Code Section 99-39-5(2), and that Chapman was not entitled to relief. Id. at 206.

         ¶13. Chapman I affirmed the trial court's dismissal, finding Chapman had failed to comply with Mississippi Code Section 99-39-9(1)(d), which requires a sworn statement of specific facts within the prisoner's personal knowledge, and a sworn statement of specific facts not within the prisoner's knowledge stating how or by whom said facts will be proven. Id. Chapman also failed to comply with Mississippi Code Section 99-39-9(1)(e), which requires witness affidavits from all who will testify and copies of documents or records that will be offered. Chapman I noted, however, this requirement may be excused upon a showing of good cause. Id.

         ¶14. Addressing the trial court's finding that Chapman's PCR action was time-barred, Chapman I pointed out that the Legislature recently had enacted Mississippi Code Section 99-39-5(2)(a)(ii), which lifts the time bar if biological evidence exists that would demonstrate, through additional DNA testing, a reasonable probability the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such DNA testing at the time of prosecution. Id. at 208-09 (citing Miss. Code Ann. § 99-39-5 (2)(a)(ii) (Rev. 2015)). But Chapman failed to show that previously tested or untested biological evidence exists, and Chapman failed to meet his burden of proving newly discovered evidence. Id. at 209.

         ¶15. Lastly, Chapman I explained that the Legislature recently had enacted a procedure for preserving and destroying DNA evidence, and requiring the State to retain enough biological evidence to develop a DNA profile, and detailing under what circumstances biological evidence may be destroyed. Id. at 209 (citing Miss. Code Ann. § 99-49-1(3)(d), (f)-(h) (Rev. 2015)). The law, however, was not in effect when the evidence used in Chapman's prosecution was ordered destroyed by the circuit court in 1985. Id.

         ¶16. Further, Chapman I found that Chapman failed to make an adequate showing or assertion that the State had acted in bad faith in destroying the evidence. Id. (citing Cox v. State, 849 So.2d 1257, 1266 (Miss. 2003) (setting forth a three-part test to prove a spoliation claim, including consideration whether the government acted in bad faith in failing to preserve potentially exculpatory evidence)). Id.[3]

         ¶17. In 2011, Chapman filed another PCR motion in the trial court asserting the same claims presented in his 2006 PCR motion. The trial court found the motion time-barred and dismissed it. The Court of Appeals affirmed the trial court's dismissal, finding it "time barred and successive-writ barred." Chapman v. State, 135 So.3d 184 (Miss. Ct. App. 2013), reh'g denied (Apr. 1, 2014), cert. dismissed, 145 So.3d 674 (Miss. 2014) (Chapman II).

         ¶18. In 2012, while Chapman II was pending in the Court of Appeals, Chapman filed a third PCR motion in the trial court, asserting: (1) destruction of evidence violated his due-process rights, (2) trial court erred in finding his motion was time-barred, (3) the indictment was defective, (4) the jury was not properly sworn, (5) the State failed to comply with discovery, (6) he had ineffective assistance of counsel, and (7) the State's closing argument was improper. The trial court denied relief, finding the PCR motion was time-barred. The Court of Appeals affirmed, holding:

It is clear that Chapman's motion was time-barred. Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), where "no appeal is taken," a petitioner must move for relief "within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction." Miss. Code Ann. § 99-39-5(2) (Supp. 2013). Chapman was convicted in 1982, which was before the UPCCRA was enacted on April 17, 1984. Odom v. State, 483 So.2d 343, 344 (Miss. 1986). "Individuals convicted prior to April 17, 1984, ha[d] three (3) years from April 17, 1984, to file their [motion] for post[-]conviction relief." Id. Therefore, Chapman had until April 17, 1987, to file his PCR motion. Chapman did not file his motion until well after the statute of limitations had run. Thus, Chapman's motion is time-barred, and we find no exception to this bar applies. See Miss. Code Ann. § 99-39-5(2)(a)-(b).

Chapman v. State, 167 So.3d 1205, 1206-07 (Miss. Ct. App. 2014) (Chapman III).

         ¶19. Chapman thereafter petitioned this Court for a writ of certiorari, which was granted. In a five-four decision, this Court reversed Chapman III. Chapman IV, 167 So.3d at 1175.

         ¶20. The majority found that Chapman had alleged two potential violations of his constitutional rights: (1) his trial record and transcript were improperly destroyed, and (2) his trial counsel was ineffective for not filing a direct appeal, which caused the recordings of Chapman's trial not to be transcribed. Id. at 1172.

         ¶21. The majority found that the first potential constitutional violation implicated due-process rights because if Chapman's trial record was destroyed, this violated a statutory duty under Mississippi Code Section 9-7-128 to preserve the record. Id.[4] The majority found that the only things contained in the record before it were Chapman's order of conviction and what Chapman claimed was his indictment for rape. Id.

         ¶22. Speaking to the second potential constitutional violation, the majority said Chapman had claimed his attorney agreed at trial to file an appeal but failed to do so even though Chapman allegedly had paid his attorney for that service. Id. And according to Chapman, he (Chapman) did not learn of his attorney's failure until roughly two years later when Chapman was informed by the court clerk that no direct appeal had ever been filed. Id.

         ¶23. The majority said that Chapman also had alleged his attorney was ineffective for not calling an alibi witness. Id. Chapman also had claimed his indictment failed to cite the relevant statute under which he was charged; the State improperly destroyed all physical evidence after his conviction; his sentence was illegal; the jury's verdict was against the weight and sufficiency of the evidence; and at trial, the victim pointed to Chapman's trial counsel from the witness stand when identifying who had raped her. Id. at 1172-73.

         ¶24. The majority held that Chapman was entitled to an evidentiary hearing so the trial court could determine "what, if anything, of the trial record exists, and to provide Chapman and the State an opportunity to locate or reconstruct the trial record and transcript, or to produce an equivalent picture." Id. at 1174.

         ¶25. On remand, the trial court issued an order granting in part Chapman's PCR motion, related here in pertinent part, as follows:

Shortly after remand, the [c]ourt and the parties began the long and tedious task of researching and investigating to determine whether or not the trial record or transcript existed. In light of the fact this matter proceeded to trial . . . over 34 years ago, determining the existence of the trial record and transcript was exceptionally challenging as all of the individuals originally involved with the case no longer work for Hinds County. Additionally, reviewing the court reporter records was painstakingly difficult, as the records are maintained in a highly unorganized fashion in a room within the Hinds County Courthouse. The reviewing of these records was further complicated by the fact that neither the [c]ourt nor the parties were aware of the true identity of the court reporter in the above-styled cause of action until May, 2016.
After nearly one (1) year of investigation into this matter by both the Court and the parties, Assistant District Attorney Jamie McBride located the original reel to reel tapes which contain the audio recordings of the Defendant's 1982 trial. Due to the dated nature of the tapes, the [c]ourt was forced to have the audio files transferred to a digital format and the sound quality enhanced. The audio recordings were subsequently transcribed by a freelance court reporter as the original court reporter, Nelda Woods, was unavailable to complete this project.
Within the Mississippi Supreme Court's July 2, 2015 Order in this case, the trial court was instructed to "consider the merits of Chapman's claims raised in the current motion for PCR based on that record" in the event that such was located. [Citation omitted]. Within the instant PCR motion and the amended motion, Chapman makes multiple claims which would have been most appropriately raised on direct appeal, such as a Batson violation, [5] faulty indictment and ineffective assistance of counsel, among others. Chapman also makes an implicit request for an out of time appeal, citing within his amended motion that his trial counsel stated in open court at the sentencing hearing that he intended to appeal this conviction, but failed to do so.
Chapman claims that his trial counsel stated on the record following the sentencing hearing that he intended to appeal the conviction, however the sentencing hearing is not contained in the record. Additionally, the only document the undersigned could located in the court file that contains any reference to an appeal is an unsigned copy of a letter to Chapman from the Honorable William F. Coleman, which states that "the Court administrator checked with Mr. Johnson, your attorney, and he advised that it was part of the plea bargaining agreement on the robbery charge that you would not appeal the rape charge. I have no way of knowing if this is correct or not." See Exhibit B, attached. Therefore in the case sub judice, the record does not contain adequate evidence to contradict Chapman's claims, however, the undersigned finds that an evidentiary hearing would be useless as Chapman's trial counsel is deceased. Accordingly, the undersigned finds it appropriate to grant Chapman's request for an out of time appeal, made within his original and supplemental [PCR motion] so that he may file a direct appeal of his underlying conviction and sentence in Hinds Co. cause number T-94. By granting Chapman leave to file an out of time appeal, the undersigned dismisses the remaining claims made within the instant motions as moot, however, nothing about the entry of this order should preclude Chapman from making these claims within the appeal of his criminal convictions.

         ¶26. At the outset, we take this moment to restate the rule in Mississippi with regard to out-of-time appeals, as reiterated in Diggs v. State, 784 So.2d 955 (Miss. 2001):

To prove [the] right to an out-of-time appeal, the movant must show by a preponderance of the evidence that he asked his attorney to appeal within the time allowed for giving notice of an appeal. Moreover, the movant must show that the attorney failed to perfect the appeal and that such failure was through no fault of the movant.

Id. at 956 (quoting Dickey v. State, 662 So.2d 1106, 1108 (Miss. 1995) (emphasis added)).

         ¶27. Here, in finding that "the record does not contain adequate evidence to contradict Chapman's claims," the trial court found that Chapman sufficiently had established he was denied his right to an appeal by counsel's actions or inactions through no fault of Chapman's. Given the circumstances in this case, such as the fact that Chapman's trial attorney is deceased, the trial court found an evidentiary hearing would be useless to determine otherwise. The trial court proceeded no further in its findings.

         ¶28. Having thoroughly reviewed the reconstructed record, we agree there is nothing that contravenes the trial court's finding that Chapman's attorney failed to perfect an appeal through no fault of Chapman's.[6] But, despite this finding by the trial court, we find that Chapman is not entitled to an out-of-time appeal.

         ¶29. As will be explained, the reconstructed record conclusively establishes that Chapman was aware, as late as August 1983, that no direct appeal or notice of appeal pertaining to his 1982 rape conviction had been filed. Yet, Chapman failed to act pursuant to either the judicial remedy created by this Court in 1977 for such situations, or the UPCCRA, which went into effect in April 1984 and granted specific grounds for relief to "[a]ny prisoner" such as Chapman claiming "he is entitled to an out of time appeal."

         Judge Coleman's 1983 Letter to Chapman

         ¶30. Judge Coleman's 1983 letter to Chapman confirms what Chapman himself admits was the case: that Chapman learned of trial counsel's alleged failure to file an appeal "roughly two years" after his rape conviction. What Judge Coleman told Chapman in the letter about needing to "file the proper papers with the Mississippi Supreme Court" because the circuit court had "lost jurisdiction[, ]" needs clarification.

         ¶31. The letter was written prior to the UPCCRA, which was enacted on April 17, 1984. The act repealed the statutory writ of error coram nobis and abolished the common-law writs relating to post-conviction collateral relief, error coram nobis, error coram vobis, and post- conviction habeas corpus. See Miss. Code Ann. §§ 99-39-3(1), 99-39-5(2) (Rev. 2015).

         ¶32. Though the act applied prospectively from its date of enactment, individuals convicted prior to April 17, 1984, were given three years from April 17, 1984, to file a PCR petition. Odom v. State, 483 So.2d at 344-45.

         ¶33. Thus, all inmates-such as Chapman-had until April 17, 1987, to file a PCR petition to request an out-of-time appeal under former Mississippi Code Section 99-39-5(1)(h)-again, providing grounds for relief to "[a]ny prisoner in custody under sentence of a court of record of the state of Mississippi who claim: . . . he is entitled to an out of time appeal."[7]

         ¶34. But when Judge Coleman's 1983 letter was written, the remedy announced in Jones I applied. Prior to Jones I, "out-of-time appeals were unknown in our practice." Coleman v. State, 804 So.2d 1032 (Miss. 2002).

         ¶35. Jones I recognized that "[d]ue process requires adequate post conviction remedies." Jones I, 346 So.2d at 377. Jones I also recognized that in most cases, the trial court would be without jurisdiction to grant an out-of-time appeal in instances where a petitioner may have been denied the right to appeal his or her criminal conviction. Id. Thus, Jones I held that the proper remedy would be to allow the complainant to petition the Mississippi Supreme Court for an appeal so "this Court may decide for itself what relief may be due." Id.

         ¶36. The next year, this Court expounded upon Jones I in Jones v. State, 355 So.2d 89 (Miss. 1978) (Jones II). Jones II held that a petition for an out-of-time appeal should be filed with this Court, with proper affidavits. Id. at 90. The case then would be remanded for an evidentiary hearing, allowing the trial court to grant an out-of-time appeal if the evidence demonstrated that, through no fault of the petitioner, the right to perfect an appeal with the time prescribed by law was denied "by the acts [or omissions] of his attorney or the trial court." Id. at 90.

         ¶37.After the UPCCRA was enacted, the judicial remedy provided in Jones I and II was no longer necessary See Coleman, 804 So.2d at 1041 (Carlson, J., concurring).

         ¶38. Here, the reconstructed record conclusively shows that Chapman was aware as late as August 1983 that his attorney had not filed an appeal. At that point, Chapman had a judicial remedy he could have pursued. Then, eight months later in April 1984, Chapman had a statutory remedy that became and remained available to him until April 1987. But Chapman failed to act on either remedy.

         ¶39. The majority in Chapman IV did not address this failure due to the scant record then before the Court. The majority also was concerned about Chapman's claims that the trial record and trial transcript were improperly destroyed by the State, along with biological evidence used in Chapman's trial. Id. at 1172-74. But as Justice Coleman in his dissent in Chapman IV correctly surmised, and as the reconstructed record now confirms, neither was the case. Chapman IV, 167 So.3d at 1177-80 (Coleman, J., dissenting). The transcript for Chapman's trial proceedings was not destroyed; rather, one was not transcribed because an appeal had not been filed. Id. at 1178. Further, it was common practice in Mississippi jurisprudence at the time to allow physical evidence to be destroyed. Id.

         ¶40. For these reasons, we find that Chapman is not entitled to an out-of-time appeal. And we reverse the trial court's ruling granting Chapman's request to file an out-of-time appeal.

         PROCEDURAL BAR NOTWITHSTANDING

         ¶41. Even were we to lift the procedural bars and permit Chapman an out-of-time appeal, we find no merit in Chapman's present claim in this matter that the reconstructed record is inadequate to allow an acceptable appeal to be prepared. The reconstructed record is more than adequate to address the claims Chapman asserts in his PCR petition(s) in Chapman v. State, 167 So.3d 1205, 1206-07 (Miss. Ct. App. 2014) (Chapman III): (1) destruction of evidence violated his due-process rights, (2) the indictment was defective, (3) the jury was not properly sworn, (4) the State failed to comply with discovery, (5) his counsel was ineffective; and (6) the State's closing argument was improper.

         ¶42. As will be discussed, the reconstructed record shows each of these claims to be without merit. And we begin our discussion with what the reconstructed record shows the facts of this case to be, in the light most favorable to the jury's 1982 guilty verdict.

         State's Case

         ¶43. On June 1, 1981, at approximately 12:15 p.m., the victim[8] was sitting in her car during her lunch break at her place of employment-Oliver Van Horn's warehouse, located on North Gallatin Street in Jackson, Mississippi. A young African-American male, whom the victim had never seen before (and later identified as Chapman), approached her vehicle and asked if he could get some cardboard boxes out of the back of the warehouse. The victim told Chapman to go around front and ask someone inside. Chapman walked away from the vehicle toward the direction of the warehouse. The victim watched him for a moment then turned back around in her vehicle. About five minutes later, Chapman returned to the victim's vehicle. The victim "didn't hear him walk up. He just snuck up on me."

         ¶44. Chapman said: "Hey, I want your car." The victim turned around and looked out of her car window, which was rolled down, and Chapman had a gun pointed at her head. The victim described the gun as "a small handgun, revolver, black in color."

         ¶45. Chapman forced his way into the victim's vehicle. The victim told the jury: "He didn't wait for me to move over. He sat on top of me." Chapman then cranked the vehicle and drove off toward the back of the warehouse and on to "a little dirt road and he went for little ways . . . ."

         ¶46. Chapman told the victim if she screamed, he would kill her. She said Chapman was driving "real, real slow, and he had the gun in his hand sitting on his lap," and she "kept asking him, 'Please don't kill me.' And he said, 'Just shut up and don't scream or don't do anything funny.'"

         ¶47. Moments later, Chapman stopped the vehicle. He asked the victim how much money she had. The victim told Chapman she had $219 in her purse. Chapman took the money and asked if she had any more. The victim said no. Chapman then looked through the victim's purse.

         ¶48. Chapman asked the victim if she had any kids. She said she had two small children. Chapman told her, "You don't want anything to happen to your kids." The victim said, "No." And Chapman said, "Well, I'm going to f*** you up." Chapman then made the victim "get out of the car and go into the bushes."

         ¶49. The victim told the jury: "We came to a little clear spot and he made me lay down, and he said, 'Pull down your pantyhose and underwear.'" Chapman told her, "Don't scream or do anything because I'll kill you." The victim said there was a "big ant bed" at the spot where she lay down, "and they were crawling all over me and biting me and he wouldn't let me get up. And that's when he started raping me." Chapman then told her "to get up because they started biting him."

         ¶50. Chapman moved the victim to "another little clearing place," about "eight feet" away and told her, "Don't do anything because I'll blow your head off." The victim told the jury: "And he raped me again."

         ¶51. Chapman told the victim: "You're supposed to enjoy it. Look like you're enjoying it." At that point, a white pickup truck drove by, and Chapman said, "Don't say anything because I'll kill you."

         ¶52. The area where the rape occurred was behind the Jackson Paper Company near railroad tracks. The victim believed the white truck belong to the railroad.

         ¶53. The victim said when the white truck drove by, Chapman "just laid there and waited for the truck to go by and looking at me, just waiting for me to do something." She said, "while I was there, I noticed that he had a big scar on his right shoulder[, ] . . . and I kept looking at it . . . ."

         ¶54. Chapman "finally got up and he told me to put my clothes on and go back to the car." There, Chapman told her, "Now, if you call the police or tell anybody, I'm going to come back and blow your head off." Chapman took the victim's money and walked away toward the Jackson Paper Company.

         ¶55. When asked by the State at trial whether she consented to having sexual intercourse with Chapman, the victim said, "No, I didn't. He forced me to[;] he had a gun and he kept threatening that he would kill me if I didn't do what he wanted me to." She told the jury specifically that Chapman's "penis penetrat[ed her] genital areas." And the crime occurred "here in the City of Jackson."

         ¶56. After Chapman walked away from the vehicle, the victim drove back to Van Horn's and told a co-worker what had happened. The co-worker informed the manager, who called the police. Police officers from the Jackson Police Department (JPD) arrived within five or ten minutes, and the victim told them what had happened.

         ¶57. She described the individual as being in his late teens or early twenties, "6'1" [tall], weighed about 165 pounds, and he had a short afro and a beige v-neck sweater with no sleeves . . . and a gold chain around his neck." He also had "peach fuzz" on his face. He was wearing blue jeans and tennis shoes. She also told the police the individual had a scar on his right shoulder, which she described as about three inches long.

         ¶58. When asked by the State at trial whether she could identify the person who raped her if she saw that person again, the victim said, "Yes, I would." She then pointed to Chapman, saying the "defendant sitting right there." The State asked, "Is that the person without the suit on that you're referring to?" The victim stated: "Right. Short sleeves."[9]

         ¶59. The victim told the jury that after talking with the police at Van Horn's for approximately "thirty to fourty-five minutes[, ]" the police drove her to UMMC. There, she was examined by a doctor, and a rape kit was performed. She said they also gave her some medicine to help prevent "venereal disease." The police called the victim's husband while she was at the hospital.

         ¶60. The next evening, on June 2, the police called the victim at home around 9:00 p.m., told her they had picked up a suspect, and asked her to come to the police station in the morning for an identification lineup. The victim and her husband went to the station the next morning.

         ¶61. On June 3, while the victim stood in a viewing room, the police brought five individuals out into an adjacent room, separated by a one-way mirror. The victim identified Chapman out of the lineup. She did so without seeing Chapman's scar, as all of the lineup participants "had on short sleeves." She said they all appeared to be the same age. They were different sizes, but all wore the same type of jail clothes.

         ¶62. JPD officers had arrested Chapman on June 2 at around 7:00 p.m. JPD officers were told at "roll call" about the rape and armed robbery that had occurred the day before, and they were given the suspect's description as provided by the victim.

         ¶63. Officer P.C. Burnham testified that he and Officer John Bowman were patrolling downtown Jackson around 7:00 p.m. on June 2, when they observed a vehicle traveling west on Amite Street, driving erratically. They pulled the vehicle over and saw it was occupied by Chapman, Officer Burnham told the jury, while pointing at Chapman in the courtroom. Both officers knew Chapman from the area.

         ¶64. They asked Chapman for his driver's license, and Chapman said he did not have one. Officer Burnham said the description they had received about the rape suspect, prior to their encounter with Chapman, was that of a "black male, 6 feet, 6 feet 1, . . . 160 pounds." Officer Burnham said at the time of crime, the individual was said to be "wearing blue jeans, some type of pullover-type cream or beige colored shirt with some button in the front." When they stopped Chapman on Amite Street, Chapman "was wearing exactly the same thing that had been dispatched over the radio . . . ."

         ¶65. The officers were told the suspect had a bad scar on his right shoulder. Officer Burnham said Officer Bowman asked Chapman if he had any scars on him. Chapman said no. Officer Bowman asked if he could look, and Chapman purportedly said he did not mind. Officer Bowman pulled Chapman's "right collar over." And "[t]here was a scar on his right shoulder as described to us ...


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