Herrington v. State
| Decision Date | 30 January 1997 |
| Docket Number | No. 93-KA-00581-SCT,93-KA-00581-SCT |
| Citation | 690 So.2d 1132 |
| Parties | David HERRINGTON v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Merrida Coxwell, Charles R. Mullins, Keyes, Danks, Coxwell & Leonard, Jackson, for Appellant.
Michael C. Moore, Attorney General, Laura Hogan Tedder, Sp. Asst. Attorney General, Jackson, for Appellee.
Before PRATHER, P.J., and JAMES L. ROBERTS, Jr. and MILLS, JJ.
MILLS, Justice, for the Court:
David Herrington was convicted by a Simpson County jury of the capital rape of a twelve-year-old female. The trial court sentenced him to life in prison. From this conviction and sentence Herrington appeals. This Court reverses and remands for a new trial.
On June 6, 1992, M.S., a twelve-year-old girl, was at home in the mid-afternoon with her stepfather, David Herrington. Herrington is married to the non-custodial mother of M.S. M.S. went into a bedroom to check on her infant half-sister. Herrington entered the room. According to M.S., Herrington pushed her down on the bed and fondled her breasts. Herrington then pulled his pants partially down and inserted his penis in her vagina. After the incident, M.S. went to the bathroom to clean herself. She testified she saw no blood, but that she saw white, sticky stuff. M.S. testified at trial that she was a virgin before June 6, 1992. She further testified that the next day that (1) she told her cousin of the event 1 and, (2) she was spotting from what she thought was menstruation.
M.S. did not report the rape until July 28, 1992, when she told her grandmother of the incident. On August 14, 1992, Dr. Harriette Hampton examined M.S. and found two lacerations, which were at least two weeks old. The doctor testified that these lacerations were more likely to occur with forced penetration than in consensual relations and that bleeding would be expected at the time of the injury.
Unknown to the jury, the defense proffered the testimony of Maxine McMillan, the victim's friend. McMillan related the following:
Q. Do y'all live close to [M.S.]'s grandmother?
A. Right behind her.
Q. Do you know [M.S.]?
A. Yes, sir. I know her.
Q. Has she been there to visit with her Grandmother on occasions when you have seen her there?
A. Yes, sir.
Q. Okay. I'm going to call your attention to the early part of July of 1992, and ask you if you remember seeing [M.S.] there about that time?
A. Yes, sir. It was sometime in July.
Speak up a little bit, please, a little louder.
Q. Sometime in July?
A. Yes, sir.
Q. Was it after July the 4th?
A. Yes, sir. I believe so.
Q. Did you and did [M.S.] go to the trailer there?
A. Sir?
Q. --on that day? Did [M.S.] go to a trailer there that day, mobile home?
A. Yes, sir. She went to my house.
Q. Do you live in a mobile home there?
A. Yes, sir.
Q. All right. And did [M.S.] stay there some time in the mobile home?
A. Yes, sir.
Q. Was--there anyone else there at the time?
A. Uh-huh. It was me, my sister, [M.S.], and Amanda, me and Charles Kelly and Bobby Rachcliff.
Q. What, if anything, did [M.S.] do there that day?
A. Sir?
Q. What, if anything, did [M.S.] do that day there?
A. Well, all of us was sitting around. We were going to go to the game room. And me, Amanda and [M.S.] left and went to the game room and left my sister there. And then we come back, and my sister went to the game room. And we was all sitting outside talking and stuff, and I asked him how old was he--you know--I thought he was about eighteen--
Q. Who were you talking to?
A. Charles Kelly.
Q. Okay.
A. And he said--there was a bet made--he said that he was under eighteen. He said that if I lost it, he was going to sleep with me, and then me and [M.S.] was sitting on the car and she--she told--she whispered in my ear and said, "Well, I want to be with him." And then her and Charles went in the trailer.
Q. Who said that?
A. [M.S.].
Q. Okay.
A. And then her and Charles went in the trailer and me and Bobby Rachcliff went behind. They went in the room and shut the door, and me and Bobby sat in the living room and watched T.V. and talked. And when they come back out, we went to--they carried us to the game room. And then she went to the bathroom and she was bleeding. And she come back out and told me she was bleeding, and I gave her a pad.
Q. Was this at the game room?
A. Yes, sir, when she said she was bleeding.
Q. Is the game room where the trailer is or is it uptown?
A. No, sir. It's up the road.
Q. Okay.
A. It's in town.
Q. All right. Did she complain to you at the game room, when she said she was bleeding, did she complain to you that she was hurting anywhere?
A. Well, she told me she was hurting, you know, in her--in her bottom part--you know--that's all she said, I'm hurting and I'm bleeding, that's all she said.
Q. Okay. Was she hurting--did she indicate to you she was hurting in her pubic area; was that what she was talking about?
A. Yes, sir.
Q. All right. Did she say at that time what caused her to have the hurting?
A. No, sir.
The Court did not allow this testimony to be offered in evidence.
Did the trial judge commit reversible error by refusing to allow evidence offered by Herrington to rebut the contention The defendant alleges that the trial court erred in not allowing the defendant to prove he was not the source of the injury, but rather that Charles Kelly was. The trial court ruled that "[I do not] see that the evidence showing opportunity or the testimony of Maxine McMillan was sufficient to characterize this as an incident of sexual behavior...." Mississippi Rule of Evidence (M.R.E.) 412, in relevant part states:
that Herrington was the source of the victim's injury?
(a) Notwithstanding any other provision of law, in a criminal case in which a person is accused of a sexual offense against another person, reputation or opinion evidence of the past sexual behavior of an alleged victim of such sexual offense is not admissible.
(b) Notwithstanding any other provision of law, in a criminal case in which a person is accused of a sexual offense against another person, evidence of a victim's past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence is:
(1) Admitted in accordance with subdivisions (c)(1) and (c)(2) hereof and is constitutionally required to be admitted; or
(2) Admitted in accordance with subdivision (c) hereof and is evidence of
(A) Past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen, pregnancy, disease, or injury; or
....
(c) (1) If the person accused of committing a sexual offense intends to offer under subdivision (b) evidence of specific instances of the alleged victim's past sexual behavior or evidence of past false allegations made by the alleged victim, the accused shall make a written motion to offer such evidence not later than fifteen days before the date on which the trial in which such evidence is to be offered is scheduled to begin, except that the court may allow the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which such evidence relates has newly arisen in the case. Any motion made under this paragraph shall be served on all other parties and on the alleged victim.
....
(d) For purposes of this rule, the term "past sexual behavior" means sexual behavior other than the sexual behavior with respect to which the sexual offense is alleged.
In three cases this Court has held that it was reversible error to disallow similar evidence that defendants' sought to introduce under our Rape Shield Rule.
Most recently, in Amacker v. State, 676 So.2d 909 (Miss.1996), the defendant offered proof that the victim had sex with another male on the same night. The trial court ruled that the witnesses' observations of the person near the victim's bed were: speculative; not necessarily sexual in nature; and not specific as to the date. Amacker, 676 So.2d at 910. The trial court disallowed the evidence. Id. This Court reversed, stating in an 6-1 decision, that "who actually caused the injury during the incident in question is outside the scope of the rape shield rule." Id. at 910. The only distinction between Amacker and this case is that in the case sub judice the alleged source of the injury occurred one month after the State would prove the date of injury. This distinction is without meaning as this Court stated "the rape shield rule's protections are inapplicable, where '[t]he act offered in explanation was not a prior separate incident but an alternative account of the events of that evening offered to counter the prosecution's medical testimony.' " Id. at 912; (quoting Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80, 85 (1983)).
The prejudice to the defendant due to the inability to counter the argument that Herrington
was the source of the injury is shown in closing arguments:
CLOSING ARGUMENT BY PROSECUTOR:
Now, I want to leave you with a real important thought here. Okay? Now, the Defendant said, [M.S.] says he did. Now, there's one fact that cannot be escaped. There is one fact that cannot be escaped. That is this. [M.S.] had two lacerations inside her vagina that were put there by forceful sexual penetration, and you can't escape that. So, for you to find this Defendant not guilty, what you've got to find is that somebody else did it. Okay? There's no question that it happened. There's no question that some type of sexually forceful penetration did occur. That's a fact. The doctor said there's no other way for it to get there. You see, that's the key point. The Defendant can come in here and...
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