Livingston v. State, No. 57198

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtDAN M. LEE, Presiding Justice, for the Court as to Parts I and II. SULLIVAN; DAN M. LEE; SULLIVAN; As to Part III, ANDERSON, J., and ROY NOBLE LEE; As to Part III, GRIFFIN; DAN M. LEE; ANDERSON; ROY NOBLE LEE; GRIFFIN
Citation525 So.2d 1300
PartiesRickey (Ricky) LIVINGSTON v. STATE of Mississippi.
Decision Date27 April 1988
Docket NumberNo. 57198

Page 1300

525 So.2d 1300
Rickey (Ricky) LIVINGSTON
v.
STATE of Mississippi.
No. 57198.
Supreme Court of Mississippi.
April 27, 1988.

Page 1301

Jerry L. Mills, Pyle, Dreher, Mills & Woods, Jackson, for appellant.

Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.

En Banc.

DAN M. LEE, Presiding Justice, for the Court as to Parts I and II. SULLIVAN, Justice, for the Court as to Part III.

Rickey Livingston appeals his conviction of rape in the First Judicial District of Hinds County, Mississippi, and sentence as an habitual offender to 40 years in the custody of the Mississippi Department of Corrections without possibility of probation or parole.

This case features a violent and humiliating sexual assault which, as proven in the trial below, represented defendant's third conviction for a similar crime. 1

The lower court's judgment is reversed by a majority of the Court because of the prosecutor's impermissible comment on Livingston's failure to testify. Parts I and II by Justice Dan Lee addresses Livingston's other assigned errors. Part III by Justice Sullivan addresses the comment on defendant's failure to testify.

INTRODUCTION

Seventeen-year-old E.C. left her Jackson-area high school about noon December 19, 1984, to begin Christmas break. She first went shopping with a friend, then went alone to the stables in north Jackson where she kept her horse, arriving at the stables on Ridgewood Road about 2:30 or 2:45 p.m. After grooming her horse for about ten minutes, preparing for a ride, a man came up from behind and startled her, asking if there were horses at the stables for sale. E.C. looked at him (he stood maybe three feet away) and pointed to another horse. Very shortly, the man grabbed her around the windpipe and began choking her. She almost lost consciousness as he took her inside a nearby equipment room, but she saw his face before he began tying her hands and feet with rope normally used for the horses.

She heard him leave the stables and also heard someone getting into her car. The man returned with a sheet from her car, which she used to protect her saddle, and he tore off a piece which he used as a blindfold. After untying her, he raped her once, then forced her to perform oral sex, and then he raped her again. She did not resist because she was very scared. The man told her to "be quiet or I'll hurt you." At times, he grabbed her so hard it left marks.

He left her blindfolded and unclothed, and told her to begin counting backward from 100. When she was sure he was gone, she dressed and ran to a dry cleaners next door to the stables and asked for help. She waited there until police and her mother arrived. She gave a description of her assailant to police and then went to Dr. James Griffin's office for an examination.

Dr. Griffin testified he prepared a rape pack. He also observed a laceration of E.C.'s hymenal ring, which at the time was still bleeding. She testified that she had never done anything like that before. Dr. Griffin also observed multiple lacerations on her lip and she had bruises on her neck.

Page 1302

Most of her skin and her upper torso were reddened, bruised and swollen; both her wrists and her lower arms had abrasions and bruises.

Within the next two days police called and asked her to come view a lineup, at which time she picked out the defendant, Rickey Livingston.

Tests revealed semen in E.C.'s vagina and the source to be someone with secretor factors A and H. Both E.C. and Rickey Livingston have type A blood and are secretors. Debra Butler, Jackson Police Department forensic serologist, was allowed to give an expert opinion based on her tests that Livingston could not be excluded as the source of the semen.

Livingston's defense was alibi, but he did not take the stand; however, he did present four witnesses. One of them, Jackie Sandifer, testified that he saw Livingston briefly on December 19, 1984, at the United Builders Supply office in northeast Jackson sometime between 1:00 and 2:00 p.m. He did not see Livingston get into a car.

Livingston's next door neighbors testified that he was home for a great portion of the time between 2:00 and 3:00 p.m. Ms. Mary Morris testified that she talked with Livingston sometime between 2:00 and a little after 2:30. She saw him through his kitchen window while she was taking clothes to her carport laundry room. Ms. Thadamenia Morris Mixon, Mary Morris' daughter, testified she remembered talking with Livingston for 30 or 40 minutes beginning about 2:25 or 2:30. The prosecution brought out that Ms. Mixon made a prior inconsistent statement to the district attorney's investigator that she actually spoke with Livingston closer to 2:00 p.m. Ms. Mixon testified, however, that the investigator omitted that she mentioned that she did not begin talking with Livingston until waiting on her daughter and niece to return from school, which usually occurred about 2:30.

Finally, Elease White testified she came to the Livingston home December 19, 1984, to work with Mrs. Livingston on a church project. She arrived somewhere around 2:25 or 2:30 p.m., and left anywhere from 2:40 to 3:00 p.m. She saw Rickey when she arrived and a couple of times while she was there, the last being some 10 to 15 minutes before she left.

Detective R.D. Eriksen testified for the state that he drove from Livingston's home to the stables in 12 minutes taking one route and 17 minutes by taking another route, following posted speed limits.

During closing argument, the district attorney told the jury that according to the judge's instruction, they should not take into account Livingston's silence. He argued that they should consider that E.C. did testify to embarrassing details and maintained a consistent account despite able cross examination. The prosecution went on to contrast the prosecutrix's credibility with that of Livingston's alibi witnesses.

The jury returned a verdict of guilty as charged, but did not set punishment.

At the conclusion of a sentencing hearing, the trial court found beyond a reasonable doubt that Livingston was an habitual offender as alleged in the indictment. It was stipulated that Livingston's life expectancy was 41.9 years, and the trial judge sentenced him to 40 years without benefit of probation or parole, to be served consecutively with two previous convictions and sentences for rape.

The trial court overruled Livingston's motion for a new trial. This appeal followed in due course.

DAN M. LEE, Presiding Justice, for the Court:

I.

Did the State's Discovery Violation Render Refreshed

Recollection Testimony Inadmissible?

Detective Eriksen testified he was present at a pre-indictment lineup where the prosecutrix identified Livingston, but on cross examination he could not recall whether Livingston was the only person the lineup who was wearing blue shoes or who was clean shaven.

Page 1303

On redirect the prosecution sought to introduce a photograph depicting the persons in the lineup, apparently taken during the lineup. It supposedly showed that Livingston was not wearing blue shoes and he was not the only clean shaven person. Livingston objected on the ground that the photograph was not disclosed pursuant to a discovery order entered by the trial court. The record is clear that the prosecution was not aware of the photograph until after trial began, but the photograph was part of a police file. The trial court agreed that it should have been disclosed and the prosecution withdrew its request to admit the photograph.

At the prosecution's request, however, Detective Eriksen refreshed his recollection of the lineup outside the jury's presence using the photograph. When the jury returned, Detective Eriksen testified on redirect that he had refreshed his memory and that Livingston was not the only clean shaven person in the lineup and more than one person had on dark shoes. Livingston objected to this testimony on the grounds it went outside the scope of redirect examination. The court overruled this objection. Livingston was given the opportunity to see the photograph and to ask additional questions on re-cross examination but did not avail himself of the opportunity.

On appeal Livingston argues that a discovery violation and the subsequent use of the non-disclosed material to refresh Detective Eriksen's memory presents reversible error. We disagree.

First, Livingston may not have preserved this error for review. Livingston only objected on the grounds that the testimony was outside the scope of cross examination; he did not present to the trial court the question of whether Detective Eriksen should be allowed to refresh his recollection using the photograph. Since Livingston argues the testimony was inadmissible on grounds different from those he presented to the trial court, he is barred from raising the issue for the first time on appeal. See Williamson v. State, 330 So.2d 272, 276 (Miss.1976). See M.R.E. 103(a)(1); see also United States v. Pugliese, 712 F.2d 1574 (2d Cir.1983).

Alternatively, were we to reach the merits of Livingston's claim, we still find it to be without merit.

First, we note that Livingston was tried in December 1985, before the effective date of the Mississippi Rules of Evidence. Our pre-Rules of Evidence precedent allowed a witness to refresh his recollection from a memorandum. See Gardner v. State, 455 So.2d 796, 799 (Miss.1984); Cutshall v. State, 203 Miss. 553, 35 So.2d 318 (1948). Our new Rule 612, M.R.E., incorporates and in some respects broadens our pre-Rules precedent. See official comment to Rule 612, M.R.E. The necessary predicate is that it must appear that the witness has no present memory and that the present memory may be refreshed from the writing. Scott v. State, 446 So.2d 580, 585 (Miss.1984). The memorandum may be used even though it would not be admissible. Gardner, 455 So.2d at 799. Here Detective Eriksen testified...

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68 practice notes
  • Jackson v. State, No. 91-DP-01190-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • December 5, 1996
    ...to the defendant's failure to testify. Foster, 639 So.2d at 1290; Griffin v. State, 557 So.2d 542, 552 (Miss.1990); Livingston v. State, 525 So.2d 1300, 1306-07 (Miss.1988). Jackson claims that the prosecution made such statements and pursued questioning which improperly drew the jury's att......
  • Handley v. State, No. 07-KA-58858
    • United States
    • Mississippi Supreme Court
    • December 27, 1990
    ...in closing arguments, a contemporaneous objection must have been made; otherwise, the point is deemed waived. Livingston v. State, 525 So.2d 1300, 1307 (Miss.1988); Monk v. State, 532 So.2d 592, 600 (Miss.1988); Lanier v. State, 533 So.2d 473, 478 (Miss.1988); Gray v. State, 487 So.2d 1304,......
  • Walker v. Epps, CIVIL ACTION NO. 1:97CV29KS
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • March 27, 2012
    ...to offer a contemporaneous objection does not necessarily bar consideration of a fundamental right." Id. (citing Livingston v. State, 525 So. 2d 1300, 1306 (Miss. 1988)).Page 52 A state court may make an alternative merits ruling on an issue without waiving its holding that the issue is bar......
  • McGilberry v. State, No. 97-DP-00213-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • June 3, 1999
    ...error. Davis v. State, 660 So.2d 1228, 1254 (Miss.1995)(citing Butler v. State, 608 So.2d 314, 318 (Miss.1992)) and Livingston v. State, 525 So.2d 1300, 1305-08 (Miss.1988). Reference to a defendant's failure to testify by innuendo and insinuation is also forbidden. Davis, 660 So.2d at 1254......
  • Request a trial to view additional results
68 cases
  • Jackson v. State, No. 91-DP-01190-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • December 5, 1996
    ...to the defendant's failure to testify. Foster, 639 So.2d at 1290; Griffin v. State, 557 So.2d 542, 552 (Miss.1990); Livingston v. State, 525 So.2d 1300, 1306-07 (Miss.1988). Jackson claims that the prosecution made such statements and pursued questioning which improperly drew the jury's att......
  • Handley v. State, No. 07-KA-58858
    • United States
    • Mississippi Supreme Court
    • December 27, 1990
    ...in closing arguments, a contemporaneous objection must have been made; otherwise, the point is deemed waived. Livingston v. State, 525 So.2d 1300, 1307 (Miss.1988); Monk v. State, 532 So.2d 592, 600 (Miss.1988); Lanier v. State, 533 So.2d 473, 478 (Miss.1988); Gray v. State, 487 So.2d 1304,......
  • Walker v. Epps, CIVIL ACTION NO. 1:97CV29KS
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • March 27, 2012
    ...to offer a contemporaneous objection does not necessarily bar consideration of a fundamental right." Id. (citing Livingston v. State, 525 So. 2d 1300, 1306 (Miss. 1988)).Page 52 A state court may make an alternative merits ruling on an issue without waiving its holding that the issue is bar......
  • McGilberry v. State, No. 97-DP-00213-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • June 3, 1999
    ...error. Davis v. State, 660 So.2d 1228, 1254 (Miss.1995)(citing Butler v. State, 608 So.2d 314, 318 (Miss.1992)) and Livingston v. State, 525 So.2d 1300, 1305-08 (Miss.1988). Reference to a defendant's failure to testify by innuendo and insinuation is also forbidden. Davis, 660 So.2d at 1254......
  • Request a trial to view additional results

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