McFee v. State

Decision Date22 July 1987
Docket NumberNo. 55947,55947
Citation511 So.2d 130
PartiesDavid Michael McFEE v. STATE of Mississippi.
CourtMississippi Supreme Court

Guy M. Walker, Laurel, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Jack B. Lacy, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc:

GRIFFIN, Justice, for the Court:

This case, involving a rape, comes to the Court from the Circuit Court of the First Judicial District of Jones County. Upon conviction, the appellant, David Michael McFee, received a life sentence. We affirm.


Between 8:15 and 8:30 a.m., on April 26, 1983, Joe Winstead went to the home of his mother-in-law to check on her after she had failed to show up for work. Upon entering the bedroom, Winstead found her dead, lying on the bed. He put a cover over the body, then ran out of the room and called the Jones County Sheriff's Department.

Officer Morris Walker arrived on the scene between 8:45 and 9:00 a.m., and went into the victim's bedroom and, together with several other law enforcement officers, made an investigation at the scene.

Later Dr. Sergio Gonzalez, a pathologist specializing in forensic pathology, conducted an autopsy. Dr. Gonzales examined the victim's vaginal area where he found evidence of bruising and superficial lacerations at the entrance of the vagina. He stated that this bruising would be consistent with forcible sexual intercourse. He also noted some "defensive" wounds on the victim's arms. Finally, he combed hair from the pubic area, giving this sample to Mrs. James of the Mississippi Crime Laboratory.

Joe Andrews, a forensic scientist specializing in hair and fiber identification at the Crime Lab, examined the samples. The sample taken from the victim was compared with the sample taken from David Michael McFee. Andrews gave his opinion that some pubic hair taken from the victim's body had the same characteristics as McFee's. Andrews, however, admitted that he could not make a positive identification from a hair comparison; he could only eliminate a person using this technique. The characteristics of the hair found on the body with those of the known sample of McFee hair did not eliminate McFee.

On May 5, 1983, after he had been taken into custody by the Jones County Sheriff's Department, McFee made his first statement before a Mrs. Craven, Officer Morris Walters, Officer Summerall and Deputy Chief Paul Little. In that statement McFee admitted that he was at the victim's home on April 26, 1983.

On May 16, 1984, David Michael McFee was formally charged with rape in an indictment returned by the Jones County Grand Jury. Following disposition of several pre-trial motions, several of which will be discussed below, the case was called for trial in Circuit Court on August 8, 1984. Following presentation of the evidence for the prosecution--McFee presenting no evidence in his own defense--the jury returned a verdict finding McFee guilty of rape and imposing the sentence of life imprisonment. Following denial of the usual post-trial motions, McFee has appealed, where the matter is now ripe for review.


McFee's first assignment of error is that the instant prosecution is precluded under the double jeopardy clauses of the federal and state constitutions. McFee has reference to the fact that he was originally indicted for the capital murder of the rape victim. Miss. Code Ann. Sec. 97-3-19(2)(e) (Supp.1986). McFee subsequently entered into plea negotiations with the district attorney as a result of which an agreement was reached whereunder the charges against McFee were reduced to murder and the State recommended a sentence of life imprisonment in exchange for which McFee agreed to testify for the prosecution at the trial of his co-indictee, Eric Fuselier. 1 The plea bargain was consummated to the extent that the charge against McFee was reduced, the guilty plea was entered and accepted by the circuit court, which imposed upon McFee the sentence of life imprisonment.

McFee's claim that the instant prosecution is precluded fails on several counts. First, he has not twice been put in jeopardy for the rape. In the capital murder indictment, McFee was charged with the underlying felony of burglary. Nothing in that indictment suggests that McFee committed rape. Insofar as the double jeopardy clauses are concerned, the prosecution was well within its prerogatives in seeking an indictment against McFee on the charge of rape and, thereafter, bringing the rape case to trial. 2 Smith v. State, 429 So.2d 252 (Miss.1983); Hughes v. State, 401 So.2d 1100, 1103 (Miss.1981).

McFee argues further that the plea-bargain agreement reached following the capital murder indictment encompassed all possible charges which might be brought out of the April 26, 1983, incident. McFee contends that the agreement of the prosecution was that, in exchange for McFee's plea and truthful testimony against Fuselier, the prosecution would not only dismiss the capital portion of the murder charge but further bound itself to commence no further prosecution arising out of the April 26 incident.

To be sure, while there is no constitutional right to enforcement of a plea bargain, Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984), Allen v. State, 465 So.2d 1088 (Miss.1985), contractual principles of reliance may, under certain conditions, be enforced against the prosecution. Edwards v. State, 465 So.2d 1085 (Miss.1986); Salter v. State, 387 So.2d 81, 84 (Miss.1980). Here, however, the prosecuting attorneys wholly denied that there was ever any agreement that McFee would not be prosecuted on other charges. More important, the circuit court found as a fact that the terms of the plea-bargain agreement did not include an agreement by the State that it would not prosecute for the rape or any other charges that might arise out of the April 26 incident. As this finding is supported by substantial, credible evidence, we have no authority to reverse. See Neal v. State, 451 So.2d 743, 753 (Miss.1984).

The assignment of error is denied.


McFee next argues that the instant rape prosecution was tainted by prosecutorial vindictiveness and is accordingly barred. The claim appears to stem from the fact that McFee testified at the Fuselier trial in a manner quite different from that which had been anticipated by the prosecution. See Fuselier v. State, 468 So.2d 45, 47-52 (Miss.1985).

Common sense may well leave a reader of the proceedings at the Fuselier trial with the definite impression that the district attorney was quite miffed over McFee's vacillating memory of the events of April 26, 1983. Yet, however much he may believe that the instant rape prosecution was improperly motivated, McFee has simply not made his proof.

The assignment of error is denied.


McFee challenges the legal sufficiency of the evidence to undergird a verdict of guilty of the crime of rape. If we appreciate the point correctly, McFee is arguing that the evidence for the prosecution was so inadequate that his motion for a directed verdict of acquittal should have been granted. Alternatively, we understand McFee to challenge the weight of the evidence and to argue that in any event a new trial should be ordered.

When on appeal one convicted of a criminal offense challenges the legal sufficiency of the evidence, our authority to interfere with the jury's verdict is quite limited. We proceed by considering all of the evidence--not just that supporting the case for the prosecution--in the light most consistent with the verdict. We give prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable men could not have found beyond a reasonable doubt that he was guilty, reversal and discharge are required. On the other hand, if there is in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb. See, e.g., Gavin v. State, 473 So.2d 952, 956 (Miss.1985); May v. State, 460 So.2d 778, 781 (Miss.1984).

McFee was brought to trial under an indictment charging him with the crime of rape. Miss.Code Ann. Sec. 97-3-65(2) (1972). Before he could be convicted, the prosecution was required to prove that McFee had non-consentual sexual intercourse with the victim, a female person above the age of twelve years, by the use of force or threatening the use of force. Having in mind this definition of the offense and the established parameters upon our authority to review the jury's verdict, we note the following: The fact that the victim was raped was established by the testimony of Dr. Gonzalez. As a part of his autopsy, Dr. Gonzales examined her vaginal area and found trauma consistent with recent forcible sexual intercourse. The photograph, State's Exhibit 2, reflected that the victim's pajama bottoms had been torn sufficient to allow access to the pubic area. The fact that she was found dead was more than sufficient to allow an inference that force was used in connection with the rape. Moreover, Dr. Gonzalez testified, without defense objection, that he found wounds on her arms consistent with one trying to fend off an attacker.

Proof that a rape occurred, the corpus delecti, is only a part of the State's burden. The prosecution offered testimony that the victim's pubic area was combed by State Crime Lab authorities and that there was found "One pubic hair of caucasian origin which exhibits the same microscopic characteristics as the known pubic hairs of David McFee."

On cross-examination, the Crime Lab expert conceded that he could "not make a positive identification from a hair comparison." The hair sample comparison is a technique of...

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