Jordan v. McKenna

Decision Date27 December 1990
Docket NumberNo. 07-CA-59116,07-CA-59116
CourtMississippi Supreme Court
PartiesJohn S. JORDAN v. Georgia Marie Redus McKENNA.

Rufus A. Ward, Jr., Harry Scott Ross, Tubb Stevens Morrison & Ross, West Point, Jim Waide, Tupelo, for appellant.

Charles T. Yoste, Starkville, J. Niles McNeel, McNeel & Ballard, Louisville, for appellee.

EN BANC.

ROBERTSON, Justice, for the Court:

I.

This appeal arises from a civil action for assault and battery. A young Oktibbeha County, Mississippi, woman has secured a jury verdict for substantial damages against the man who cruelly raped her. The defendant appeals charging errors in evidentiary rulings at trial and urging reversal.

The matter acquires a special context in that the state's criminal justice arm has found the defendant guilty of rape, and this Court has affirmed. In the end, this becomes quite important to today's affirmance.

II.

On March 30, 1984, a Friday, then twenty-one-year-old Marie Redus was alone at her home at the terminus of a dead end road off Highway 12 in Longview, Mississippi, out from Starkville. About one o'clock that afternoon an older model dark blue car with a white top and lots of chrome pulled into the driveway. A large man with broad shoulders, and a strong face with a cleft in his chin, and wearing Air Force sunglasses, got out. The man came to the house and asked Marie if her mother was at home, that she had told him of some property that was for sale in Longview, and he was interested in it. The man gave his name as James Prentiss. When Marie told the man her mother was not home, he asked if he could use the telephone. Marie handed him the telephone book and moments later he flung her to the floor, assaulted and raped her, clutching her throat to thwart resistance. 1

Once she was sure the man had gone, Marie ran to a nearby grocery store-restaurant owned by Al Perrozzi and his wife and, crying and distraught, told of the attack. She was taken to the Oktibbeha County Hospital and examined by a physician, and tests were made, confirming that Marie had suffered a sexual assault.

Marie described her assailant as an older man in his late forties with greying hair, over six feet tall, wearing brown pants and a brown leather-type jacket with a hole in the right sleeve, and driving an older model blue car. Marie pointed to the Sheriff's gun belt to give the color of the jacket.

Oktibbeha County Sheriff Dolph Bryan investigated the assault, without much initial success. For the next few months, as he was patrolling the county, Sheriff Bryan methodically began noting cars and drivers approaching Marie's description of her assailant and his vehicle. From the license plates of these cars he would ascertain the name of the owner and from this procure a copy of the owner's driver's license from the Department of Public Safety in Jackson. After accumulating a dozen or more of these license facsimiles, he would obscure the names and addresses on the licenses and conduct a photographic lineup, displaying to Marie the "mug shot"-style photos. Over the next two years, Sheriff Bryan conducted many such lineup sessions with Marie, all without success.

In 1986 Sheriff Bryan's patience and persistence paid off. John S. Jordan was implicated in another rape occurring in adjacent Clay County. Jordan's photograph had appeared in one of Sheriff Bryan's earliest photo lineups, although Marie failed to recognize his picture, perhaps owing to the poor quality of the transmitted image. Hearing of the Clay County charges, Sheriff Bryan procured another facsimile of Jordan's driver's license. He soon realized that he had presented Jordan's picture to Marie once before, although since that time Jordan had renewed his license and had a new picture taken. Using Jordan's more recent and significantly sharper image, Sheriff Bryan prepared another photographic lineup and presented it to Marie on July 17, 1986. Marie identified the picture of Jordan as a picture of the man who attacked her, then went home and thought about it, because she wanted to make sure. She later returned and told Sheriff Bryan that Jordan was definitely the rapist.

Shortly thereafter Sheriff Bryan went to Jordan's home in West Point, and, when he arrived, he saw an automobile that matched the description Marie had given him of the car her assailant drove, so he took Polaroid pictures of it. Sheriff Bryan and Highway Patrol Investigator Jimmy Edwards received no response when they knocked on the front and back doors. The two started to leave, but because the cars were there, they suspected someone was at home and returned. Sheriff Bryan and Investigator Edwards noticed a yellow dog looking out in a nearby soybean field. They decided to go see what the dog saw and found Jordan on his "belly crawling off in the opposite direction." Jordan returned with them to the house. The next day Sheriff Bryan returned with arrest and search warrants and took Jordan into custody, seizing items of clothing thought to be of evidentiary value.

On August 1, 1986, the Oktibbeha County Grand Jury charged Jordan with forceable rape. Seven weeks later, Marie commenced the present civil action by filing her complaint in the Circuit Court of Oktibbeha County. Jordan answered denying the essential allegations of the complaint.

Once Jordan had been criminally convicted, 2 Marie reactivated her civil action, and the case was called for trial on January 28, 1988. Marie provided a positive in-court identification of Jordan as the man who attacked her. When Sheriff Bryan had searched the Jordan home in July of 1986, he had found a brown leather jacket with a patched right sleeve, which Marie said her rapist wore. A seamstress who lives near the Jordans testified that, about a month after the rape (of which she had no knowledge), she put a triangular patch over the hole on Jordan's jacket and otherwise tried to repair it. Marie also was shown a pair of slacks seized from Jordan's home and identified them as the same type worn by her assailant. The car and its color became a subject of great controversy, with Marie claiming the car in the photograph was the one driven by her assailant, while Jordan's proof was that this was his wife's car and furthermore that it had a different color at the time and that it had been home all day March 30.

Marie provided testimony from a forensic serologist for the Mississippi Crime Laboratory who analyzed Marie's blood type and Jordan's as well. The test is one of exclusion. The serologist testified that the seminal fluid found on Marie's clothing had been deposited by a male of type A blood who was a secretor, a finding which fit Jordan, and, some thirty-two percent of the male population. 3

As at his criminal trial, Jordan's defense was one of alibi. He claimed that he had left Mississippi on Thursday night, March 29, 1989,--the night before Marie was raped--and had driven to Plano, Texas, to attend a fiftieth wedding anniversary celebration for his aunt and uncle. A number of Jordan's relatives in Texas appeared at trial and testified that Jordan arrived in Plano on the morning of Friday, March 30, driving his green Rambler. Jordan's wife, Jo Jordan, stayed behind in Clay County and said she called Plano at 7:30 a.m. on March 30 and spoke with him at length.

In the end, the jury rejected Jordan's defense and returned a verdict for Marie, awarding actual damages in the amount of $380,000.00 and punitive damages of $50,000.00. Jordan moved for a new trial and/or a remittitur, and the Circuit Court denied these motions. Jordan now appeals to this Court.

III.

Jordan charges that the Circuit Court erred in a variety of particulars and urges reversal. All of these issues founder upon a more fundamental plain error below--the Court's failure to perceive that elementary principles of collateral estoppel precluded Jordan relitigating the fact issue of whether he raped Marie. The point goes to Jordan's fault, but not causation nor damage.

Through the facility of its duly-empaneled jury the Circuit Court of Oktibbeha County on February 7, 1987, found as a fact that John S. Jordan assaulted Marie and raped her in her home in Longview, Mississippi, on Friday afternoon, March 30, 1984. This Court affirmed Jordan's conviction and sentence and specifically held that the evidence was legally sufficient that the Circuit Court had

... correctly overruled Jordan's post-trial motion for a judgment of acquittal, notwithstanding the verdict [citing cases] and that the court had "acted well within its discretion when it held that the verdict was not contrary to the overwhelming weight of the evidence, but denying Jordan's motion for a new trial. [citing cases]

Collateral estoppel decreed Marie entitled to have the fact of Jordan's fault taken as established. Jordan thus entered the present proceedings faced with a final finding of fact that he had assaulted and raped Marie.

Notwithstanding recent ferment around its periphery, see McCoy v. Colonial Baking Co., Inc., 572 So.2d 850 (Miss.1990), collateral estoppel's core has been settled in this state for years. For example,

[W]here a question of fact essential to a judgment is actually litigated and determined by a valid and final judgment, that determination is conclusive ... [against the party against whom it was made] in a subsequent suit on a different cause of action.

Garraway v. Retail Credit Company, 244 Miss. 376, 385, 141 So.2d 727, 730 (1962); Dunaway v. W.H. Hopper & Associates, Inc., 422 So.2d 749, 751 (Miss.1982); Magee v. Griffin, 345 So.2d 1027, 1032 (Miss.1977). The unsuccessful party is precluded from relitigating the fact so found. Offensive use of collateral estoppel by one such as Marie is likewise allowed, at least in core cases such as this. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979).

In a sense, collateral estoppel functions as though it were a rule...

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