Allman v. State

• Decision Date: 21 November 1990
• Docket Number: No. 07-KA-58850,07-KA-58850
• Citation: 571 So.2d 244
• Parties: Ernest Lee ALLMAN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 244

571 So.2d 244

Ernest Lee ALLMAN v. STATE of Mississippi.

No. 07-KA-58850.

Supreme Court of Mississippi.

Nov. 21, 1990.

William T. Bailey, Sr., Lucedale, for appellant.

Mike C. Moore, Atty. Gen., DeWitt Allred, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and PRATHER and ROBERTSON, JJ.

DAN M. LEE, Presiding Justice, for the Court:

Appellant, Ernest Lee Allman was indicted by the George County Grand Jury at the October 1986 Term on a single indictment containing three counts of raping his niece, C.A., who was 10 years old in 1986, the year of the alleged incidents. After a jury trial on January 30, 1987, appellant was found guilty on two of the three counts named in the indictment of violating MISS. CODE ANN. Sec. 97-3-65(1) (1972).

On February 19, 1987, the court sentenced appellant as follows:

[T]he court sentences you to serve a period of life in prison on each count to the indictment for which you have been found guilty. That's counts 1 and 2 of the indictment. And the two sentences are to run concurrent.

Following the usual post-trial motions for J.N.O.V., or for a new trial, both of which were denied, appellant filed this appeal in October 1987, assigning twelve (12) errors, none of which we find meritorious. Each of the twelve issues are set forth and discussed hereafter in the body of this opinion.

Statement of the Facts

Due to the sensitive nature of this case, the names of the children involved are designated with initials.

C.A., ten years old at the time of the incident and 11 years of age at trial, testified that she was raped by appellant. The first occasion (Count 1 ) occurred in the late part of January or the early part of February 1986, during the afternoon hours, in a shed behind C.A.'s grandmother's house. C.A. was assisting appellant in cleaning out a refrigerator located in the shed. Also in the shed at the time was Count 3 allegedly occurred in the summer of 1986, chronologically prior to Count 2. C.A. testified she was in her grandmother's trailer watching TV when appellant came in, sat beside her and "... started talking to me. I thought he was just being nice to me, talking to me ..." then "he started touching me ... [i]n my lower part of my body ... [h]e kept on talking to me and he asked me if I wanted to have sex with him. I said, no, leave me alone.... And he quit and he went back outside."

C.A.'s four year old cousin, J.A. C.A. testified, "[h]e had sex with me."

Count 2 occurred in September 1986. Alone in the trailer, C.A. was watching T.V. when appellant "came in. And he sat down beside me and he asked me what I was watching.... I told him.... And then he started touching me. And then he got my pants down, and then he started again."

Dr. Dayton Whites was called as a witness for the State. Defense counsel objected to the admission of Dr. Whites' testimony on the basis that Dr. Whites first entered the case on September 16, 1986, 7 days after the incident of September 9, 1986 (COUNT 2), and months after the other two incidents of February 1, 1986 (COUNT 1), and June 15, 1986 (COUNT 3). The Court overruled the objection. However, defense counsel was allowed, per his request, to voir dire Dr. Whites out of the presence of the jury and prior to Dr. Whites' testimony in the presence of the jury.

Dr. Whites testified before the jury that he performed a pelvic examination on C.A. in the Emergency Room of the local hospital on September 16, 1986. He had seen her before as a patient so, when she appeared at the hospital for medical attention on this day, he was called to examine her. The doctor asked C.A. some questions for purposes of medical diagnosis and treatment, one of which was had she ever had sexual intercourse and if so how many times. She answered she had and said at least ten times. In sum, Dr. Whites explained the process of a pelvic examination, that he performed one on C.A. using a virginal speculum but that in his opinion he could have used an adult speculum which is "very unusual" for a 10-year-old. In his opinion, his findings were consistent with the fact that C.A. had had intercourse on more than three occasions and that having intercourse with a male adult spread out over a period of time on at least ten occasions could cause the kind of dilation and enlargement he found C.A.'s vagina to have experienced. On cross-examination, the doctor opined that what happened to C.A.'s vagina happened at the very least, within the last few weeks prior to the examination. Other than that, he could not determine how far back in time the process had begun.

Testifying in his own defense, appellant denied ever penetrating C.A. on any occasion. With regard to the incident of February 1986, in the shed, he claimed it was C.A. who initiated a sexual pass at him, that "she pulled her britches down and [he] pulled [his] down" and that he lay down on top of her but then changed his mind and stopped all attempts to penetrate her. With regard to the incident during the summer 1986, appellant denied ever touching C.A. Finally, referring to the incident in the fall 1986, appellant claimed he was lying in bed watching T.V. when C.A. came into the room and made some sexual advances at him but he sent her away. He denies any touching took place much less penetration.

ASSIGNMENTS OF ERROR

# 1

Whether the trial court erred in denying appellant's motion for new trial on basis that role of preacher in court proceedings created prejudicial environment?

The facts of this first assignment of error are murky at best. The story that appellant would like for this Court to believe is that Rev. Roy T. Myers, Pastor of Rocky Creek Baptist Church, George County, Mississippi, acted as foreman of the Grand Jury that indicted appellant. This Appellant asserts that the environment in the courtroom of this small community created a condition of prejustice [sic] against appellant "from the prayer at the beginning of the trial to the verdict of the jury." Therefore, appellant did not receive a fair and impartial trial.

                much is true and can be substantiated in the record.  However, the rest of the story is not nearly so easily proven.  Appellant claims that the same Rev. Myers, "... at the beginning of this trial on Friday, 30 January 1987, ... was called forward and asked to lead in prayer."   At the time of this trial, the prosecutrix was living at the Sheriff's Girls Ranch in the Rocky Creek Community, and had attended church and Sunday School at Rocky Creek Baptist Church where, as previously stated, Rev. Myers was the Pastor.  Appellant asserts that after concluding the prayer in court, Rev. Myers, took a seat in the courtroom, across the aisle from the jury panel, by the superintendent of the Sheriff's Girls Ranch, Mr. Turner, for the selection of the petit jury to hear the case and, according to appellant, "[t]here being very few people in the courtroom."
                

The State's response is on target. At the hearing on the Motion for a New Trial, appellant put on no proof to substantiate any of the allegations in his motion, allegations repeated in his brief. In the absence of proof in support of the motion, the presumption in favor of the trial court's actions must prevail. Gordon v. State, 349 So.2d 554, 555 (Miss.1977). Moreover, appellant failed to object at the appropriate time if he felt so prejudiced. The first the trial court heard of this matter was at the JNOV or New Trial hearing following the trial.

Finally, as the trial judge noted, any connection, in the minds of the jurors, between Reverend Myers and the trial of appellant would be speculative at most. The mere possibility that the jurors may have been influenced by some extraneous matter is not enough to set aside a verdict. Irving v. State, 361 So.2d 1360, 1368 (Miss.1978), cert. den. 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979).

This Court finds that appellant failed to meet his burden of proof on the motion. The trial judge correctly labeled the effect appellant seeks as "speculation." Neither appellant nor the record reveals exactly what transpired, who was in the court room when the prayer was said or that any one or more jurors were indeed prejudiced by the preacher's prayer, his presence, his connection with the prosecutrix or the fact that he was foreman of the Grand Jury that indicted appellant. "An appellate court only acts on the basis of the contents of the record as made in the trial court and may not act upon statements of facts in briefs or arguments of counsel which are not reflected by the record." Gordon, supra, at 555.

# 2

Whether the trial court erred in denying the motion to quash the indictment because the surplus language added to the indictment did not comport with the appropriate statutory language and therefore prejudiced appellant?

MISS. CODE ANN. Sec. 97-3-65(1) (1972) under which appellant was indicted states in pertinent part as follows:

Every person eighteen (18) years of age or older who shall be convicted of rape by carnally and unlawfully knowing a child under the age of fourteen (14) years, upon conviction, shall be sentenced to death or imprisonment for life in the State Penitentiary; ... In all cases where the child is under the age of fourteen (14) years it shall not be necessary to prove penetration of the child's private parts where it is shown the private parts of the child have been lacerated or torn in the attempt to have carnal knowledge of the child.

Appellant discerns that the above statute states; "... rape by carnally and unlawfully knowing ..." whereas the indictment states: "... unlawfully, wilfully and feloniously rape, ravish and carnally know ..." (emphasis added) Appellant argues that the record is void of "wilfully, feloniously, ravish" and the use of the terms influenced the minds of the jury.

Appellee emphasizes that the term unlawfully appears in both the indictment and the statute. The term feloniously means unlawfully with the...