Johnston v. State, 51448

Decision Date14 November 1979
Docket NumberNo. 51448,51448
Citation376 So.2d 1343
PartiesChester Jordan JOHNSTON, Jr. v. STATE of Mississippi.
CourtMississippi Supreme Court

Nobles & Ferguson, James W. Nobles, Jr., Jackson, for appellant.

A. F. Summer, Atty. Gen. by Robert D. Findley, Spec. Asst. Atty. Gen., Jackson, for appellee.

Before ROBERTSON, P. J., and BROOM and COFER, JJ.

ROBERTSON, Presiding Justice, for the Court:

Appellant, Chester Jordan Johnston, Jr., was convicted in the Circuit Court of the First Judicial District of Hinds County of the rape of a 22-year-old woman on March 19, 1978. He was sentenced to 45 years imprisonment in an institution designated by the State Department of Corrections. Johnston assigns as error:

I. The failure of the State to preserve certain exculpatory evidence and perform blood tests on fluid samples was a denial of defendant's due process guaranteed by the 6th and 14th amendments.

II. The trial court erred in permitting testimony on the results of tests run on the rape package, when the prosecution failed to establish the chain of custody.

III. The rape shield statute denied the appellant his right to cross-examination and right to confrontation of the witnesses against him guaranteed by the 6th amendment of the Constitution.

Prosecutrix resided in one side of a duplex at 454 West Silas Brown Street in Jackson, and Johnston resided in the other side of the duplex, having recently moved in. At about 12:30 A.M. on March 19, 1978, prosecutrix was awakened by a loud knock on her door. She went to her locked front door and asked who was there, and Johnston identified himself. He told her that he had a flat tire and needed to borrow her phone, but prosecutrix refused to let him in.

Prosecutrix, while refusing to let Johnston in, offered to call someone for him. Johnston gave her the name of a friend, but upon looking in the telephone book she found seven listings for that name. Since Johnston could not remember the name of the street this friend lived on, he asked prosecutrix to let him in so he could look in the telephone book. Again she refused, replying that she was not dressed to admit him.

Johnston suggested that he return to his apartment, prosecutrix could put the phone book out on the porch, go back in her house and he would come out and check the number in the book. Prosecutrix, agreeing to this procedure, looked out the window to make sure Johnston was gone, then unlocked the door to place the phone book on the porch. When she opened the door, Johnston, who had apparently been hiding on the porch, grabbed her and forced his way into her apartment.

Johnston forced the prosecutrix into her bedroom, striking her several times with his hand, threatening to rape her, and threatening to kill her. Despite prosecutrix's efforts to talk with Johnston and her praying out loud, Johnston told her to shut up or he would kill her, and he stuck his thumb in her mouth. When she would not remove her clothes, he removed them and forcibly had sexual intercourse with her. He then made her dress and go with him into his apartment, where he put on his shoes and then left in his car.

The prosecutrix immediately went back to her apartment and called the police. She then called her minister who came over with his wife and accompanied her to the University Hospital. Dr. William Cleland, a resident in obstetrics and gynecology, examined her and found swelling and bruises about her head, face, neck and mouth. Dr. Cleland, following the hospital's standard procedure, did a wet prep smear and discovered numerous motile sperm, indicating recent intercourse. The sample of vaginal fluid and two cotton swabs used by Dr. Cleland for the smear were sealed in plastic tubes and delivered to the police.

Officer Dennis Froshour and his partner, Officer Johnson, picked up the rape pack at the University Hospital and delivered it to the Precinct 2 police station to be picked up by the property division of the Jackson Police Department and transferred to the crime lab. Officer Froshour also arrested the defendant at his place of employment on March 20th. The only test run on the rape pack by the police department was for determining the presence of sperm, and the test proved positive. Two pubic hairs and three head hairs found at the scene of the rape were compared to samples from defendant Johnston and found to be microscopically similar.

Johnston presented an alibi defense that he had been with his ex-wife at the time the alleged rape occurred. He testified that on the evening in question he arrived at his ex-wife's house at about 12:30 A.M., accompanied by his brother. He stated that he spent the rest of the night at his ex-wife's home in Pearl, returning to his apartment the next morning.

I.

WAS THE DEFENDANT DENIED DUE PROCESS BECAUSE OF THE STATE'S

FAILURE TO PRESERVE CERTAIN EXCULPATORY EVIDENCE
AND PERFORM BLOOD TESTS ON FLUID SAMPLES?

Johnston's motion for production of documents and tangible evidence was filed on April 14, 1978, almost a month after the date of the alleged rape. Among other things, Johnston asked the State to produce:

"11. Any exculpatory matter in which in any way tends to absolve the Defendant of the crime with which he is charged which is in the possession or under the control of the State of Mississippi.

12. The results of any blood tests and blood type comparisons made by, for or on behalf of the State of Mississippi of the blood type of the Defendant, with any semen, skin scrapings or other matter taken from the body of the Prosecutrix."

The State, not having conducted any blood tests and blood type comparisons of the defendant's blood type with semen samples taken from the body of the prosecutrix, did not have any "results of any blood tests and blood type comparisons" to produce under the general request of the motion. Neither did it have "any exculpatory matter which in any way tends to absolve the Defendant of the crime," to produce in accordance with the calls of the motion.

Finally, on June 29, 1978, more than three months after the semen samples and vaginal fluid had been taken from the body of the prosecutrix, the defendant made a motion ore tenus that the contents of the rape package be delivered to him so that tests could be conducted. That same day the court ordered the state to produce these items. The samples proved to be no longer viable because the defendant had...

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13 cases
  • State v. Pancake
    • United States
    • West Virginia Supreme Court
    • September 21, 1982
    ...v. Cornes, 80 Ill.App.3d 166, 35 Ill.Dec. 818, 399 N.E.2d 1346 (1980); State v. Davis, Iowa, 269 N.W.2d 434 (1978); Johnston v. State, Miss., 376 So.2d 1343 (1979); State v. Herrera, 92 N.M. 7, 582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972 (1978). See Fed.R.Evid. 402. See generally,......
  • In re Miss. Rules Evidence
    • United States
    • Mississippi Supreme Court
    • June 16, 2016
    ...to M.C.A. § 97-3-70 (repealed July 1, 1991), the Mississippi rape-shield law enacted in 1977. See also M.C.A. § 97-3-68; Johnston v. State, 376 So. 2d 1343 (Miss. 1979).ARTICLE V. PRIVILEGESRule 501. Privileges Established by Constitution or Rule OnlyUnless the federal or state constitution......
  • Foster v. State
    • United States
    • Mississippi Supreme Court
    • May 27, 1987
    ...and it is always subject to the trial court's inherent power to limit cross-examination to relevant factual issues, Johnston v. State, 376 So.2d 1343 (Miss.1979). Although the extent of cross-examination is committed to the sound discretion of the trial court, 1 Pace v. State, 473 So.2d 167......
  • Gibson v. State, 56915
    • United States
    • Mississippi Supreme Court
    • February 18, 1987
    ...See also, Barnette v. State, 478 So.2d 800, 804 (Miss.1985); Lambert v. State, 462 So.2d 308, 312 (Miss.1984); Johnston v. State, 376 So.2d 1343, 1346 (Miss.1979); Jones v. State, 367 So.2d 458, 460 (Miss.1979); Harrison v. State, 307 So.2d 557, 561 (Miss.1975); Lindsey v. State, 279 So.2d ......
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