Heflin v. State

• Decision Date: 29 September 1994
• Docket Number: No. 90-KA-00388,90-KA-00388
• Citation: 643 So.2d 512
• Parties: George Homer HEFLIN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 512

643 So.2d 512

George Homer HEFLIN v. STATE of Mississippi.

No. 90-KA-00388.

Supreme Court of Mississippi.

Sept. 29, 1994.

David L. Valentine, Wood & Valentine, Ridgeland, for appellant.

Michael C. Moore, Atty. Gen., Pat S. Flynn, Asst. Atty. Gen., Jackson, for appellee.

En Banc.

BANKS, Justice, for the Court:

ON PETITION FOR REHEARING

On Petition for Rehearing the original decision is withdrawn and this opinion substituted therefor. We are once again asked to review the proceedings leading to the conviction of George Homer Heflin of the crime of rape of his daughter. We reversed the judgment following the first trial because of the exclusion of testimony that the victim had discussed setting up a person for rape. After careful study, we are once again constrained to hold that Heflin was deprived of a fair trial due to the wrongful exclusion of evidence indicating that victim may have had recent sexual activity providing an alternate source for some of the physical evidence found. We reverse and remand for further proceedings.

I

On June 11, 1985, Homer Heflin and his then 16-year-old daughter, S.H. (the name of the alleged victim is omitted to protect her identity), went to a sandbar on the Pearl River for a day of fishing and sunbathing. In addition to the ordinary supplies needed for such excursions (suntan lotion, insect repellent, a fishing pole, etc.), Homer Heflin also took along a bottle of vodka and stopped to get another one on the way. He also had a cooler of beer and wine in his vehicle.

After they got to the sandbar, S.H. sunbathed while her father fished and drank. After fishing for a little while, Heflin began to gather firewood. According to Heflin, he and his daughter entered into a conversation about purchasing S.H. a new car. This conversation ended in an argument. During this argument, Heflin admits to slapping the victim. It then started raining, and the two of them took shelter in the vehicle. They tried to leave the sandbar but the dune buggy they were travelling in would not start. Heflin, a mechanic, explained that it was because the distributor cap had gotten wet. After the rain stopped, he built a fire on the sand to dry out the distributor cap and S.H. went to sleep. It is at this point that the stories of the parties begin to differ.

According to Homer Heflin, when the distributor cap dried out he put it on the distributor and the two of them immediately went home, stopping only at a convenience store to pick up some supplies for dinner. According to S.H., when she awoke, her father started accusing her of smoking, drinking and having sex with boys. He said he had heard that she was "South Jackson's road whore." S.H. stated that he told her "if I was going to fuck everybody else in the country I was him, too." S.H. testified he then got on top of her and when she fought, he hit her on the side of the head five or six times, bursting her lip. He then raped her. After the two of them had washed off in the river, S.H. tried to escape by running away but Heflin caught her and choked her. He then raped her again. He told her, "Now that wasn't so bad, was it?" Heflin next gathered their things up and put them in the dune buggy. However, before they left the sandbar, he raped S.H. a third time.

At this point the stories of the parties again become similar. They returned home. S.H. stayed there the rest of the evening, in the presence of her father, her stepmother Linda Heflin, and Mike Henderson, a friend of her father. The next morning when her stepmother went to work, S.H. called her sister, Deniece McClure, told her that something had happened, and asked her to come pick her up at her place of work that afternoon. When her sister arrived, S.H. told her what had happened and the two of them went to their mother's house and then to the police.

In addition to S.H.'s testimony and her sister's, the State presented the testimony of Dr. C.E. Grissom, who testified that when he examined S.H. she had bruises on her left temple, and strangulation marks on her throat. Dr. Grissom did a rape kit and found no sperm in the vaginal vault, but testified that the thirty-hour time period between the rape and the examination made it unlikely that sperm would be found. He also testified that due to the length of time between the assault and the examination he could not determine whether or not S.H. had recent sexual intercourse. However, Dr. Grissom testified that in his opinion, based on his experience with hundreds of rape victims, S.H. had been raped. This testimony was based solely upon her demeanor and the presence of the bruises.

Jackson police detective Edna Drake testified that when she interviewed S.H., she had bruises on the left side of her face, marks on her throat and a split upper lip. She also said S.H. cried a lot when she was telling her what had happened at the sandbar. With a search warrant, Detective Drake got the clothing that S.H. and her father had worn to the sandbar. Detective Drake's testimony was also used to establish venue in the matter.

Debra Butler, a forensic serologist, tested the bathing suit S.H. was wearing and found sperm cells and seminal fluid in the crotch area. Mrs. Butler testified, over numerous objections of the defense, that in her opinion S.H. had engaged in recent sexual intercourse.

Deniece McClure, the victim's sister, testified that when she picked S.H. up at work, as S.H. had called her and asked her to do, she noticed bruises on the victim's face and neck. Over defense objections, the sister testified that S.H. told her that she had been raped by her father.

As already discussed, Homer Heflin testified that he had slapped S.H. that day in an argument over getting her a car, but said nothing else happened. Heflin denied ever having any sexual relations with his daughter whatsoever. His wife, Linda, and friend, Mike Henderson, testified that S.H. did not have any bruises when she came in from the fishing trip and that she acted normal through dinner and through the evening.

Shirley Brewer, Henderson's ex-wife and a friend of the Heflins, testified that at some time prior to June 1985, S.H. told her she knew how to set someone up in a rape case, that she had done research in the library (the trial court's refusal to let Brewer testify to this alleged conversation with S.H. was the basis of this Court's reversal of Heflin's first conviction). On rebuttal, S.H. testified that she was never close to Shirley Brewer, had never had this conversation with Shirley Brewer and had never shared any secrets with her. Hinds County Circuit Clerk Barbara Dunn testified that although this case had been set for trial ten (10) times before the first trial in 1987, Brewer had not been subpoenaed as a witness any of those times.

At the close of all the evidence, a verdict of guilty was returned against Homer Heflin. Heflin was sentenced to 25 years in prison and this appeal followed. He raises the following issues:

I. The trial court erred in overruling the defendant's motion to dismiss based upon the loss of crucial pieces of exculpatory evidence and in allowing Debra Butler to testify regarding serology testing from the "rape kit" after it had been lost or destroyed.

II. The trial court erred in overruling the defendant's motion for mistrial based upon the testimony of Debra Butler regarding her opinion that S.H. had recently engaged in sexual intercourse.

III. The trial court erred in not allowing the testimony of the defendant, George Homer Heflin, regarding statements made by Emily Thomas regarding the reasons S.H. came to live with, George Homer Heflin.

IV. The trial court erred in not allowing the impeachment of the complaining witness, S.H., with her prior testimony regarding lying to the appellant.

V. The trial court erred in refusing to allow testimony of S.H.'s prior sexual activity as contained in the emergency room reports of Dr. C.E. Grissom and the blood tests of her boyfriend, Greg Dukes, at the time of the alleged rape.

VI. The trial court erred in allowing the hearsay testimony of Deniece McClure regarding statements made by the complaining witness, S.H., regarding who had allegedly raped her.

VII. The trial court erred in taking judicial notice of the fact that the alleged crime took place in the First Judicial District of Hinds County, Mississippi.

We have carefully examined all issues raised. We find IV, V, and VI worthy of discussion by the Court, and cause for reversal with respect to issue V.

II

Prior to trial the state sought a ruling precluding evidence of S.H.'s past sexual behavior, asserting the provisions of M.R.E. 412. In response to that motion Heflin made an offer of proof, in accordance with MRE 412(c) contending that certain evidence was admissible under MRE 412(b)(2)(A) because it went to the question of whether he was the source of the semen revealed in examination of S.H.'s bathing suit. The court granted the motion in limine. Heflin renewed his motion at trial and we consider the evidence adduced in the motion hearing and that adduced at trial supporting the admissibility of this evidence.

The evidence in question consisted of the medical history taken by the examining physician, the testimony of Mrs. Heflin concerning the activities of S.H. on the weekend before the alleged rape and the evidence of the blood type of the young man, Greg, who she described as her boyfriend, with whom S.H. went out on the Saturday and Sunday before the rape. The medical history reflected that S.H. told the doctor that she had last had sexual intercourse "last week" when she was examined by the physician on Wednesday, June 12, following the alleged rape on Tuesday. Linda Heflin offered testimony that S.H. went out with Greg on Saturday, June 8, in the early evening and returned at midnight and that she went out with Greg again on Sunday, June 9, in the early afternoon and again returned at or near midnight. Mrs....