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Keyes v. State

Court of Appeals of Mississippi

December 4, 2018

DELBERT KEYES A/K/A DELBERT KEYS JR. A/K/A DELTBER KEYES JR. APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

         DATE OF JUDGMENT: 02/23/2017

          HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. ROGER T. CLARK TRIAL JUDGE

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN

          DISTRICT ATTORNEY: JOEL SMITH

          BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.

          BARNES, J.

         ¶1. Delbert Keyes was convicted of robbery, kidnapping, and forcible sexual intercourse. For each count, he was sentenced to life without eligibility for parole in the custody of the Mississippi Department of Corrections (MDOC) as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015), with the sentences to run consecutively. He appeals his convictions, asserting several allegations of error involving the weight and sufficiency of the evidence and his status as a habitual offender. We find no error and affirm.

         SUMMARY OF FACTS AND PROCEDURAL HISTORY

         ¶2. During the late evening of October 18, 2015, seventy-seven year old Liza[1] was at home in Gulfport, Mississippi, when her dog began barking at something outside; so she went to investigate. A man came up behind her and "clamped" her arm, twisting it behind her back. He forced her inside to her bedroom where he tied her arms behind her back with handkerchiefs and forced her to lie face down with a pillow over her head. The man demanded money. Upset after discovering only $60 in Liza's purse, the assailant took off Liza's nightgown and attempted to penetrate her with his penis, using a handkerchief to cover it. While he was attempting to have intercourse with Liza, he took off his leather jacket. When he finished with his assault, he began looking for jewelry. Liza told him there was an additional $100 hidden in her purse, which he took. The attacker exited the home, leaving behind his jacket, which Liza had kicked under the bed. Liza ran to her neighbors' home to contact the police. She described the man as short and heavyset. Liza was taken to the hospital for an examination, and the perpetrator's jacket, Liza's nightgown, and her handkerchiefs were sent for DNA analysis.

         ¶3. A few days later, Leonard Bankston, a local handyman who had worked for Liza, heard of the assault and reported to the police that he suspected his neighbor, Keyes, was the perpetrator. Following up on Bankston's tip, Detective Christopher Werner located Keyes at his sister's apartment. The detective noted that Keyes was a "[s]horter, heavier set individual," matching Liza's description of her assailant. Detective Werner confiscated a cell phone lying next to Keyes on the couch. Although Keyes denied it was his phone, it was later confirmed that Keyes bought the phone the day after Liza's assault. Examination also revealed that the phone was used to search for news regarding the attack and for information on bus tickets. Police also talked with Keyes's sister, Debbie Faulkner, who said that on the evening of the attack, her brother had left her home at 10:30 p.m. and returned at 1:30 a.m. without his jacket. Faulkner's home was only a couple of blocks from Liza's house. Faulkner identified the recovered jacket as Keyes's. However, when interviewed by police, Keyes claimed that he never left his sister's apartment that evening and had gone to bed by 9:00 p.m. Police took Keyes into custody and collected DNA through a buccal swab.

         ¶4. On May 23, 2016, Keyes was indicted for Count I, robbery; Count II, kidnapping; and Count III, forcible sexual intercourse, as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015). The State filed a motion to amend the indictment to charge Keyes under section 99-19-83 on November 30, 2016. The trial court granted the motion.

         ¶5. A jury trial was held in Harrison County Circuit Court on February 21-23, 2017. Liza testified regarding the events that occurred during the attack as stated above. Gulfport Police Officer Jason Vincent testified about his investigation of the crime scene. He observed jewelry on top of the bed and a "black leather coat underneath the bed with two handkerchiefs near it." He also observed another handkerchief tied in a knot with hair in it, and the condition of the room indicated "somebody was rummaging, attempting to locate items."

         ¶6. Tobie Nix, the emergency-room nurse who treated Liza on the night of the attack, stated that Liza had "multiple bruising to her upper body, her wrist, her neck, face, some abrasions that were current." The witness did acknowledge that some of the bruising reportedly occurred prior to the attack. Dr. Kathy Keimig, the treating emergency-room physician, was admitted as an expert in the field of emergency-room medicine. She noted that Liza was "very upset, tearful, [and] was very anxious." During her examination, Dr. Keimig noted fresh bruising and abrasions around Liza's face, arms, and wrists. She also testified that Liza had bruising and abrasions around and inside her genital area and rectum, which were consistent with a sexual assault.

         ¶7. Bankston said that he knew Keyes and had driven him to the store or to the scrap yard on occasion. On cross-examination, counsel asked him why he thought Keyes had perpetrated the attack on Liza. Bankston said he did his own investigating when he heard of the assault and "did enough searching to know that [Keyes] had done this same particular thing [twenty] years ago." Defense counsel objected and moved to strike the response. The trial judge said that the witness was merely responding to the defense's question; so the testimony was allowed.

         ¶8. Kathryn Rogers, a DNA analyst with Scales Biological Laboratory, testified as an expert in the field of DNA analysis. She took samples from the leather jacket to create a mixture profile. The DNA analysis revealed that 99.99% of the world's population could be excluded from the mixture profile, but Keyes could not. Additionally, Rogers conducted ...


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