Davis v. State, 44501

CourtUnited States State Supreme Court of Mississippi
Citation204 So.2d 270
Docket NumberNo. 44501,44501
PartiesJohn DAVIS v. STATE of Mississippi.
Decision Date06 November 1967

Page 270

204 So.2d 270
STATE of Mississippi.
No. 44501.
Supreme Court of Mississippi.
Nov. 6, 1967.
Suggestion of Error Overruled Dec. 11, 1967.

Page 271

Jack H. Young, Jackson, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

SMITH, Justice:

Appellant, John Davis, was convicted of the crime of rape in the Circuit Court of Lauderdale County and was sentenced to life imprisonment in keeping with the verdict of the jury. From that conviction and sentence, he has appealed here.

On December 2, 1965, in the City of Meridian, in the early hours of the night, an eighty-six year old white woman was raped in her home by a negro youth.

At the May 1966 Term of the Circuit Court of Lauderdale County, Appellant, John Davis, was indicted for the crime. However, the question having been raised that there had been a systematic exclusion of negroes from jury service in Lauderdale County and the trial court so finding, all indictments, including that against Appellant

Page 272

Davis, were quashed, the jury box emptied and the Board of Supervisors directed by the trial court to refill the box by drawing the names of 1500 qualified persons for jury service. This having been done, a new grand jury was constituted at the November 1966 Term, and Appellant Davis was again indicted for the offense.

Motions to quash the grand jury panel and the second indictment were substantially similar to motions in other cases tried at the same term, including Boyd v. State, 204 So.2d 165, (Miss. Nov. 6, 1967). By stipulation of counsel, transcripts of the evidence adduced upon the hearing of the motions were used in each of these cases. The opinion in Boyd, by Justice Brady, therefore applies with equal force to the motion here. The motion in this case was properly overruled for the reasons stated in Boyd.

Nor does the record support appellant's objection that negroes were systematically excluded from the 75 man special venire from which the trial jury was selected. Two negroes actually served on the jury and seven or eight others were placed in the box, but excused upon peremptory challenge.

Appellant assigns and argues several grounds for reversal.

The fact of rape was established beyond dispute and is not questioned on this appeal. Appellant did not testify. His defense was an alibi, sought to be established by the testimony of two witnesses which tended to show that he was elsewhere when the crime was committed.

The countervailing evidence for the prosecution, identifying appellant as the assailant, consisted of the victim's own testimony that she recognized him, and of finger and palm prints lifted by the police from the window and window sill where the attacker had gained entrance to her home, and identified by the Federal Bureau of Investigation as being those of appellant.

Appellant's first contention is that he is entitled to a reversal of his conviction because he was denied a public trial. The circumstances upon which this argument is based follow.

When the case was called for trial, the first witness for the prosecution was the victim, an eighty-seven year old woman. Of its own motion, the court directed that, during the course of her testimony only, the public would be excluded from the courtroom. The court made it clear that, upon the conclusion of the testimony of this witness, everyone might return and remain throughout the trial. The appellant made no request that relatives be allowed to remain, or that the court make any other exception to the exclusionary order.

Following the court's announcement, this colloquy took place between appellant's counsel and the court:

BY MR. YOUNG: Your Honor, I understand and appreciate the Court's reason for excluding the general public from the court room during the testimony of (naming the witness); but under the circumstances I am going to have to enter an objection for the record, your Honor. I think this would deprive the defendant of a public trial that is guaranteed to him by the Constitution, and we just want this entered in the record.

BY THE COURT: All right. The Court makes this order in order to keep down unnecessary publicity, unnecessary embarrassment, and it believes it is in keeping with the best conduct of a case of this sort, and particularly the, sometimes, ugly curiosity that comes into cases of this sort as far as the public is concerned. The Court does not exclude the public from this trial beyond the testimony of (naming the witness), who is eighty-seven years of age, and a woman considerably known throughout this part of Mississippi.

All right.

Page 273

The trial then proceeded. After the conviction and sentencing of appellant, appellant moved for a new trial, assigning a number of grounds, but the action of the court in excluding the public during the testimony of the victim was not among them. Nor was it asserted in the motion that the defense had been prejudiced by the exclusion of the public during the victim's testimony.

The action of the court in this regard was an exercise of discretion vested in it under the Mississippi Constitution 1890 section 26, which provides, among other things:

(B)ut in prosecutions for rape, adultery, fornication, sodomy or the crime against nature the court may, in its discretion, exclude from the courtroom all persons except such as are necessary in the conduct of the trial.

In urging reversal upon the ground that this action of the court denied him a public trial, appellant relies principally upon Re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948), as interpreted by Lewis v. Peyton, 352 F.2d 791 (4th Cir. 1965). Appellant contends that in the latter case, the Circuit Court of Appeals for the Fourth Circuit held that the due process clause of the Fourteenth Amendment to the Constitution of the United States embraced the Sixth Amendment, and guarantees a public trial. He argues that the action of the trial court, in excluding the public during the testimony of the victim, was a violation of appellant's right to the public trial so guaranteed.

In Lewis, the prosecutrix was, as here, an eighty-seven year old woman. However, unlike the case here, she was bedridden at the time of the trial.

In Lewis, the Court of Appeals for the Fourth Circuit set aside the Virginia conviction upon two grounds. First, the entire court and court attendants moved to the bedroom of the prosecutrix in her home in a sparsely settled rural area for the purpose of taking her testimony, and her neighbors were ordered from the courtroom in order to make space in the tiny bedroom for the court officials. Not only were the neighbors excluded during the prosecutrix' testimony, but they were also excluded during the testimony of the only other person who testified in the case. Secondly, the court pointed out that these proceedings had been had without a prior order of record by the trial court as required by a Virginia statute permitting the taking of the deposition of the prosecutrix in a rape case, in the discretion of the court, by court order, without the usual formalities. The court pointed out that no such order had been entered in the case, and said, '(W)e cannot accept the belated contention that the conduct here indulged was a harmless substitute for that procedure.' 352 F.2d at 791.

Other cases cited by appellant deal with the exclusion of the general public throughout the entire trial.

The appellant concedes that the exclusion of the public by the trial court during the testimony of the prosecutrix in a rape case has been upheld against constitutional challenge where she was a young child. Geise v. United States, 262 F.2d 151 (9th Cir. 1958), cert. denied, 361 U.S. 842, 80 S.Ct. 94, 4 L.Ed.2d 80 (1959), discussing earlier decisions; Harris v. Stephens, 361 F.2d 888 (8th Cir. 1966); Hogan v. State, 191 Ark. 437, 86 S.W.2d 931 (1935).

We have concluded that the same reasoning applies with equal or perhaps greater cogency in the case of this eighty-seven year old woman. The exclusion of the public during the course of her testimony, in order that she might not be required to undergo the humiliating and traumatic experience of being compelled to relate in public, and be cross-examined about, the sordid details of the attack upon her, was a reasonable exercise of sound judicial discretion on the part of the trial judge. The consequences to the young witness, supported by the resilience of youth, would be less grave than to one who is suffering the inevitable infirmities and frailties of great age.

Page 274

We are unable to say in this case that the trial court abused its discretion or prejudiced appellant's rights in excluding the public while the prosecutrix testified. This view is strengthened by the failure of appellant to assign, in his motion for a new trial, this action of the trial court or any ground or prejudice resulting therefrom.

Appellant next contends that the admission of evidence regarding his fingerprints was prejudicial error, arguing that his prints were taken while he was illegally under arrest and did not have the benefit of the advice of counsel.

The police had reached the scene within a short time after the assault. They found a window screen removed from a window opening onto the front porch of the home, and the window raised about half-way. Within minutes, they dusted the window and...

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