Johnson v. State, 56964

• Decision Date: 05 August 1987
• Docket Number: No. 56964,56964
• Parties: L.V. JOHNSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1360

511 So.2d 1360

L.V. JOHNSON v. STATE of Mississippi.

No. 56964.

Supreme Court of Mississippi.

Aug. 5, 1987.

George S. Monroe, B. Jackson Thames, Jr., Newton, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by H.M. Ray, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and ROBERTSON and ANDERSON, JJ.

ROBERTSON, Justice, for the Court:

I.

Excessive consumption of alcohol and other drugs has long been a source of man's inhumanity to man. Today's case is but another anecdote to the sad truth of that fact, for here we find a young man in his mid-twenties, after "drinking and smoking dope," brutally attacking and raping a 76 year old widow who lived alone.

Notwithstanding our disgust at Defendant's conduct, we have dispassionately reviewed each assignment of error he has tendered. Each refers to a matter where the trial court either acted correctly or well within its discretionary authority. We affirm the conviction of rape and sentence of life imprisonment without eligibility for parole, for Defendant has been shown an habitual offender.

II.

A.

In July of 1985 Mrs. Eddie Lee Eubanks, a widow, lived alone in Philadelphia, Mississippi. At approximately 3:00 a.m. on Sunday morning, July 7, 1985, Eubanks awoke to go to the bathroom. When she returned to her bed, she discovered a man in bed with her who held a knife to her throat and raped her. Her attacker then instructed her to take him to any money she had. He took money from a coin purse in the kitchen and took a piggy bank from the living room. When Eubanks led him to her guest bedroom after he had inquired about a purse she always carried, the man raped her again. ¹ Finally, the attacker got Eubanks' butcher knife, ordered her to open her door for him to leave, and threatened to come back and kill her if she screamed. He left with her two telephones, purse, butcher knife, flashlight, and piggy bank.

After her assailant's departure, Eubanks put on some clothing, crawled and walked first to the house of a neighbor whom she was unable to awaken, and finally went to the home of another neighbor who took Eubanks back to her own home and called the police. After the police arrived at the scene of the crime at about 5:00 a.m., the neighbor then took Eubanks to the hospital. Although Eubanks returned to her home after being examined by a doctor, at approximately 8:00 a.m. she returned to the hospital again because she had begun hemorrhaging. At approximately 8:45 a.m. a doctor surgically repaired lacerations in her posterior vaginal wall and in her cervix. Eubanks remained in the hospital for several days thereafter.

On that July 7, 1985, at approximately 2:00 a.m.--about one hour before the rape--Bonny Wilson and girlfriend Deborah Boler had discovered L.V. Johnson in their house, which is about four or five blocks south of the Eubanks residence. After ordering Johnson out of their home, Wilson and Boler, at approximately 2:45 a.m. while proceeding to the police station, observed Johnson in the vicinity of Eubanks' residence. At the police department Wilson and Boler reported Johnson for breaking and entering their premises. However, at this time the police did nothing because they did not wish to awaken the judge for signing of a warrant.

At approximately 12:30 p.m. on July 7, 1985, in Meridian, Mississippi, L.V. Johnson was taken into custody pursuant to a warrant for breaking and entering Bonny Wilson's residence. Johnson was returned by police car to Philadelphia, Mississippi, where he was apparently taken to the hospital for a "rape suspect" examination, though when this hospital visit occurred is in conflict. Johnson was not questioned until some twenty-four hours later, at approximately 1:00 p.m. of the next day, July 8, 1985, because Johnson was not "at hisself;" he appeared to be "under the influence of something."

At this questioning about the rape, according to police, Johnson signed a statement in which he acknowledged and waived his Miranda rights. He next slammed his hand on the table and stated "I'm your man.... I'm ready to make a statement.... I don't want a lawyer." According to police Johnson then gave a signed statement admitting his guilt. When confronted with the above police testimony at trial, Defendant Johnson rose from his chair, called the testifying police investigator a "lying son of a bitch," and fell to the floor in an apparent faint.

This confession included not only admission of the rape but also a statement that Johnson had gone into another house earlier in the night. At trial, after a hearing out of the presence of the jury, the reference to this "other crime" of breaking and entering was deleted from the confession. However, the confession in its entirety was later at the end of trial allowed to go to the jury because Defendant Johnson himself injected testimony concerning the crime of breaking and entering Wilson's home.

Apparently the police rested their case on Johnson's confession. No fingerprints were taken at the scene of the crime, the police never attempted to search L.V. Johnson's home, the rape kit apparently was never retrieved from the Mississippi Crime Lab, and the victim was never given an opportunity to identify Appellant Johnson--either in a line-up or by photograph.

B.

On September 17, 1985, the Grand Jury for Neshoba County returned an indictment charging Johnson with the crime of rape. Miss.Code Ann. Sec. 97-3-65(2) (Supp.1985). Johnson was also charged as a recidivist within Miss.Code Ann. Sec. 99-19-81 (1972). The matter was called for trial in Circuit Court on October 2, 1985. On the following day the jury returned a verdict as follows:

We, the Jury, find the Defendant, L.V. Johnson, guilty as charged and unanimously agree to fix his punishment at imprisonment for life.

Thereafter, the Circuit Court heard the prosecution's charge that Johnson be sentenced as a habitual offender. Evidence was presented establishing that Johnson had been convicted on a charge of armed robbery in the Circuit Court of Neshoba County on February 21, 1978, that he had been convicted on a charge of forgery in the Circuit Court of Neshoba County on September 29, 1983, and that on the same date he had been convicted of a crime of grand larceny in the same court. Thereafter, the Circuit Court sentenced Johnson to life imprisonment without eligibility for parole, probation, suspension or reduction of sentence. Miss.Code Ann. Sec. 99-19-81 (1972).

On October 4, 1985, Johnson filed his motion for a new trial asserting numerous errors in the trial proceedings. On the same date the matter was taken up and considered by the Circuit Court and an order was thereupon entered overruling and denying the motion. This appeal has followed.

III.

Johnson first assigns as error the Circuit Court's refusal to order a change of venue. The matter was presented at a pre-trial hearing held on September 26, 1985. Each side presented the testimony of four witnesses. In the end the motion for change of venue was denied.

Counsel for Johnson points out that upon recross-examination of one of the State's witnesses, tax assessor for Neshoba County admitted that a rape of a 76-year-old white female by a 24-year-old black male could very well be the type of case that would subject the accused to an unfair trial by a partial jury. Also State's witness Stanley Dearman, owner and editor of the Neshoba Democrat Newspaper, admitted upon cross-examination that such a crime would be "a volatile sort of thing that people would have strong feelings about."

Current change of venue jurisprudence in this state directs "that a motion for change of venue ordinarily should be granted where, under the totality of the circumstances it appears reasonably likely that, in the absence of such relief, the accused's right to a fair trial may be lost. Fisher v. State, 481 So.2d 203, 220 (Miss.1985); see also Weeks v. State, 493 So.2d 1280, 1287 (Miss.1986); Cabello v. State, 490 So.2d 852, 854 (Miss.1986); Wiley v. State, 484 So.2d 339, 343 (Miss.1986); Johnson v. State, 476 So.2d 1195 (Miss.1985).

We have carefully reviewed the evidence considered by the Circuit Court in connection with the motion for change of venue. Without question the evidence was qualitatively and quantitatively far less persuasive than that found in Fisher and Johnson sufficient to mandate reversal on this ground. We accord the Circuit Court a certain amount of discretion in considering requests for change of venue. Here the evidence was not such that we may hold that the Court abused its discretion in denying the motion. The assignment of error is denied.

IV.

Johnson assigns as error the Circuit Court's refusal to grant his motion for a continuance. The grounds upon which Johnson sought a continuance was the absence of one Phillip Coleman who, according to Johnson, would have been an alibi witness. Johnson says that Coleman would have testified that Johnson was at Coleman's house when the rape occurred.

The record reflects that four separate subpoenas had been issued for Phillip Coleman. He could not be found, although he was a resident of Philadelphia, Mississippi, and quite possibly subject to the jurisdiction of the Circuit Court.

Johnson argues that, because of Coleman's residence in Neshoba County, it would be reasonable to expect that with a little patience and perseverance he could be found and subpoenaed. The prosecution responds, however, that Coleman was wanted for questioning in drug cases and that it was not at all reasonable to expect him to return.

Under the circumstances, and with the agreement of the district attorney, the Circuit Court instructed the jury as follows:

The Defendant, through his attorney, has announced he would call as a witness one Phillip Coleman, and if Phillip Coleman was present, he would testify that L.V. Johnson was at his house with him at the time and on the night of the rape of Mrs. Eubanks. That testimony is in...