Massey v. State, 52305

• Decision Date: 07 January 1981
• Docket Number: No. 52305,52305
• Citation: 393 So.2d 472
• Parties: Jack B. MASSEY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 472

393 So.2d 472

Jack B. MASSEY v. STATE of Mississippi.

No. 52305.

Supreme Court of Mississippi.

Jan. 7, 1981.

Rehearing Denied Feb. 18, 1981.

Robert B. Prather, Columbus, for appellant.

Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before SMITH, P. J., SUGG and LEE, JJ.

SMITH, Presiding Justice, for the Court:

Jack B. Massey was charged by indictment with the rape of a twenty-one year old woman. He was tried upon that charge in the Circuit Court of Lowndes County, convicted, and sentenced to twenty-five years imprisonment.

On appeal he assigns two grounds for reversal.

One of the assignments challenges the sufficiency of the evidence to support the jury's verdict. The evidence was conflicting, however, and created an issue of fact for resolution by the jury as to appellant's guilt or innocence, and, there is no merit in this assignment.

The other assignment is to the effect that, over appellant's objection, the prosecution was permitted to introduce irrelevant, immaterial and unduly prejudicial testimony concerning alleged prior offenses and misconduct on the part of appellant.

At the outset, prior to the commencement of the trial, the court "sustained" in part a defense motion for leave to introduce evidence as to the victim's "sexual conduct" and the State's motion in limine. The trial court's order recited:

(T)he defendant will be allowed at the trial of this cause to introduce any evidence pertaining to any sexual relations by the complaining witness with one, Doug Cook, on the evening of October 30, 1979. No reference shall be made in any question propounded by the defendant to the fact that the said Doug Cook is married; that the complaining witness has been having a sexual relationship with the said Doug Cook prior to the evening of October 30, 1979; that she was drunk or under the influence of drugs on that evening; that she has lived with a man to whom she was not married; that she has had an illegitimate child; that she drinks to excess; that she stays out many nights to all hours of the morning or that she has made any statements to anyone concerning her reluctance to testify due to past sexual misconduct; unless the State shall first breach those issues on direct examination.

While the action of the trial court upon the motions is not assigned as error on appeal, the restrictions placed upon the defense in attacking the character of the complaining witness are in contrast to the court's action in allowing the prosecution, over strenuous and continuous objection, to adduce both on cross-examination and by an independent witness, alleged actions of misconduct reflecting upon appellant's character, extending, over a period of approximately a week prior to the crime upon which he was being tried.

The victim was employed at an establishment commonly known as a "lounge." After leaving work shortly after midnight on the morning of October 31, 1979, the morning of the alleged rape, the victim joined three males and visited other "lounges" in their company. Following this, two of the men got out of the car and the other, one Doug Cook and the victim drove out to a rural parking "spot" and sat in his car drinking beer until about daylight. Both the victim and Cook testified that they did not engage in sexual intercourse.

Arriving home near daybreak the victim said that she went to her room, changed into her nightgown, locked her bedroom door and went to sleep. She testified that at about 9:30 that morning she was awakened by appellant beating upon her door and telling her to open it. She said that she put on her robe and opened the door. Thereupon, according to the victim, the appellant came into the room with a gun in his hand, threw her on to the bed, put the gun to her head and told her to take off her underclothes. This she did. It was then, she said, that appellant had sexual intercourse with her. She testified that during this time she had been pushing him and crying and hollering at him to leave and that he had reacted to this resistance on her part by pointing the gun at her head and telling her to shut up. While this was happening, appellant's wife was not in the house. After the sexual act had been completed, the victim put on her clothes, got one of Mrs. Massey's children, who had been in the house with her, and ran to a neighbor's house, the neighbor having been Mrs. Massey's mother.

The neighbor testified that when she saw the victim she was "crying and screaming" and breathing very hard. She told her that she had been raped by appellant at gunpoint and asked her to call the sheriff.

Medical testimony indicated that there were no tears, bruises, or bleeding of the victim's private parts but that there was evidence that she had had sexual intercourse within the last twenty-four hours, probably within the last few hours.

Appellant testified as a witness in his own behalf. He denied that he had committed the rape. He said that he had only talked to the victim through her locked door that morning.

The State brought out by the testimony of the victim, over the strenuous objection of appellant, evidence relating to two alleged prior incidents. In the first of these, the victim was permitted to testify that appellant, armed with a pistol, in the presence of a fourteen year old, attacked the victim by pulling her hair, pushing her around and pointing the pistol at her at a time when he was drunk. This incident is said to have occurred...