Brooks v. State, 46142

• Decision Date: 04 January 1971
• Docket Number: No. 46142,46142
• Citation: 242 So.2d 865
• Parties: Thomas Mayfield BROOKS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 865

242 So.2d 865

Thomas Mayfield BROOKS v. STATE of Mississippi.

No. 46142.

Supreme Court of Mississippi.

Jan. 4, 1971.

Rehearing Denied Jan. 25, 1971.

Henry K. Van Every, Columbus, for appellant.

A. F. Summer, Atty. Gen., by Timmie Hancock, Sp. Asst. Atty. Gen., Jackson, for appellee.

ETHRIDGE, Chief Justice:

Thomas Mayfield Brooks, appellant, was convicted of the rape of an eight-year-old girl in the Circuit Court of Lowndes County, and was sentenced to a life term in the state penitentiary. It is not necessary to go into the details of this offense. The evidence was sufficient to support the jury's finding of guilt. Miss. Code 1942 Ann. § 2358 (1956).

It is immaterial whether the rape was accomplished by force or violence or against the will of the child, because she was under the age of consent. Miss. Code 1942 Ann. § 2358 (1956); Lewis v. State, 183 Miss. 192, 184 So. 53 (1938). There was no error in permitting the doctor to testify as to the injuries to the child's sexual organs. Simmons v. State, 105 Miss. 48, 61 So. 826 (1913).

On his own motion, Brooks was sent to the Mississippi State Hospital at Whitfield and received a psychiatric examination. Miss. Code 1942 Ann. § 2575.5 (Supp.1968). The case was set for trial on May 14, 1970, and a subpoena was issued for Dr. Anderson, Chief Psychiatrist at the hospital, but it was not served on him, since he was in California. Appellant's motion for a continuance stated that he would attempt to show that he did not received a complete psychiatric examination at Whitfield. At the hearing on this motion, a letter from Dr. Anderson to the circuit judge was introduced. It stated that the unanimous opinion of the hospital staff was that appellant was without psychosis and was competent to stand trial. Overruling the motion for continuance, the circuit court stated that the sole basis for the presence of Dr. Anderson would be for cross-examination only, and there was no indication that his diagnosis would be changed or that the doctor's presence at the trial would be of aid to defendant. Moreover, since the opinion from the hospital was the unanimous opinion of the staff, appellant could have obtained the presence of other psychiatrists on the staff who participated in the examination. See Eslick v. State, 238 Miss. 666, 119 So.2d 355 (1960).

Defendant produced no evidence indicating that there was a reasonable probability that he was incapable of making a rational defense. Further, the court's own observation of the accused is relevant on this issue. The evidence justified the trial court in finding that appellant was competent to stand trial. See Jaquith v. Beckwith, 248 Miss. 491, 157 So.2d 403 (1963); Wilson v. State, 243 Miss. 859, 140 So.2d 275 (1962). Also, the court properly overruled appellant's motion for it to appoint a private psychiatrist to examine him. There are no statutory provisions for the appointment and payment of a psychiatrist selected by the defendant or the court. Tarrants v. State, 236 So.2d 360 (Miss.1970).

When the prosecutrix's mother returned to her home after completing a shopping trip, she observed the little girl crying. She testified:

I ask her what was the matter and she told me that she was hurt. She says, 'I am hurting,' and I asked her what happened. I thought maybe the two had been into a fight and I said, 'Did Pat hit you?' She said, 'No,' and said, 'he hurted me,' and I said, 'Who?' and she told me this so I took her in the house.

Defendant's counsel made no objection to this testimony. However, on redirect examination, when the mother again stated, 'She (the child) just said he 'hurted her',' defendant objected and was overruled. The objection came too late, assuming it otherwise should have been sustained. In a rape prosecution the state may show that the prosecutrix made complaint as soon as a reasonable opportunity presented itself. Moreover, the statement did not specifically name or identify the defendant and was admissible in evidence under these circumstances. Lauderdale v. State, 227 Miss. 113, 85 So.2d 822 (1956).

Appellant filed a motion to amend his plea of not guilty to a plea of not guilty by reason of insanity, but the trial court did not rule upon it. Defendant's counsel had the duty to call the motion to the court's attention and obtain a ruling. Not having done so, he waived any right as to the motion. Marr v. State, 248 Miss. 281, 159 So.2d 167 (1963).

Appellant offered four relatives as witnesses, presumably to testify to his general reputation for peace and violence in the community in which he lived. However, these witnesses lived over one hundred miles from Columbus and on interrogation were not properly qualified on this issue, although perhaps the trial court should have permitted the first witness to so testify. A witness must qualify to give an opinion by showing acquaintance with the person and with the community in which he has lived. 1 Wharton's Criminal Evidence § 222 (12th ed., Anderson, 1955); 97 C.J.S. Witnesses § 55 (1957). Accordingly, we cannot say that the trial judge abused his discretion in ruling as he did on this inadequately qualified testimony.

There was no error in the colloquy between the jury and the judge before it reached its verdict. The record affirmatively shows that the trial judge did not indicate in any way how long he intended to keep the jury deliberating. Wade v. State, 155 Miss. 648, 124 So. 803 (1929). Moreover, appellant did not assign or argue this question as error.

A preliminary hearing was held on defendant's motion to suppress a written confession signed by him. Brooks had executed a waiver form under the Miranda rule, and subsequently signed a confession. The evidence amply warranted the circuit court in finding that this confession was voluntarily and intelligently made, at a time when Brooks was aware of his rights and knew what he was doing. Two officers who interrogated him and took the confession testified to that effect. Brooks asserted that it was made by him at a time when he was so drunk that he did not remember anything about it. This was an issue of fact for the trial judge to determine, i.e., the competency of the confession, and there was substantial evidence to support his conclusion.

The other substantive objection to the confession is that, as presented to the jury, it shows that defendants is guilty of other similar or related offenses at times prior to the rape. The confession recites that on several occasions prior to the offense in question, defendant was in bed with the little girl, would feel of her private parts, and would otherwise caress her with his own sexual organs. These acts would be a felony under Code section 2052, making it an offense for a male to fondle a child under thirteen years of age for the purpose of gratifying his lust. Miss. Code 1942 Ann. § 2052 (1956). The confession then proceeds to narrate the facts of the particular rape for which defendant was convicted.

The general rule is that in a criminal prosecution evidence which shows or tends to show that accused is guilty of the commission of other offenses at other times is not admissible, unless the other offenses are reasonably connected with that for which he is on trial. There is a substantial number of these exceptions. Evidence of other crimes is admissible to prove identity of the defendant, scienter or guilty or criminal knowledge, criminal intent or purpose, motive, a plan or system of criminal action where a continuing offense is charged, or where other crimes form a part of the res gestae. Lee v. State, 244 Miss. 813, 146 So.2d 736 (1962); 29 Am.Jur.2d Evidence §§ 320, 321 (1967). The 'acid test is its logical relevancy to the particular excepted purpose or purposes' for which the evidence of prior offenses is sought to be introduced, 'and the considerations justifying the reception of evidence of other similar crimes has been held by some courts to be peculiarly applicable in prosecutions for sexual offenses.' Id. § 321.

Accordingly, evidence is generally held to be admissible which shows or tends to show prior offenses of the same kind committed by defendant with the prosecuting witness. The courts assign various...