Ormond v. State
| Decision Date | 15 April 1992 |
| Docket Number | No. 89-KA-0221,89-KA-0221 |
| Citation | 599 So.2d 951 |
| Parties | J.C. ORMOND a/k/a Simon a/k/a J.C. Sanders v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Leslie C. Gates, Meridian, for appellant.
Michael C. Moore, Atty. Gen., Jackson, Jack Brooks Lacy, Jr., Asst. Dist. Atty., Brandon, for appellee.
Before DAN M. LEE, P.J., and PRATHER and SULLIVAN, JJ.
PRATHER Justice, for the Court:
J.C. Ormond was indicted by the grand jury of Lauderdale County on July 28, 1988, for the felony of capital rape of a child under the age of fourteen under section 97-3-65 1 of the Mississippi Code and as an habitual offender under section 99-19-83. After conviction by a jury, the court held a hearing on the issue of recidivism and found Ormond to be a recidivist under section 99-19-83. The court imposed a sentence of life in the custody of the Mississippi Department of Corrections without any possibility of parole.
The appellant assigns twelve issues which have been consolidated as follows:
1. The court erred in admitting evidence of gonococcal disease seized from the defendant's person pursuant to a search warrant.
2. The court erred in allowing Dr. Kim to testify as to her medical findings.
3. The court erred in excluding the testimony of witness Doris Wilson.
4. The court erred in not giving a lesser-included-offense jury instruction.
5. The comments made by the prosecutor during closing argument were prejudicial and the objection thereto should have been sustained.
6. The court erred in denying the motion for a new trial.
7. The court erred in overruling defendant's objection to the proof of recidivism.
The fifty-nine year old defendant, J.C. Ormond, testified he had known Nona Henderson 2 since about 1984 when her mother had moved out of the house and left Henderson and her children with nothing. He helped Henderson move into a housing project. After he was released from jail in 1986, he and Henderson began a relationship which he said included sexual intimacy. He testified that the relationship continued during January and February of 1988. According to Ormond, he did not suffer from gonorrhea in January or February 1988.
On February 14, 1988, Henderson asked him if he would keep her two children, Kathy, eight years of age, and Gregg, ten years of age. He agreed, and went to Henderson's house about 6:00 p.m. When Ormond arrived, Henderson's sister, a female friend, Ormond's grandson, and his girlfriend, were at the house. Ormond sent them to buy some beer while he stayed with Kathy and Gregg.
Ormond then took Kathy and Gregg to get some ice cream and returned home. Gregg fell asleep on the living room floor while Kathy sat on the couch watching television. Ormond allegedly then raped eight-year-old Kathy.
At trial, Kathy, using anatomical dolls to aid her testimony, described in detail how Ormond raped her three times. At first, she told him to stop, but he put his hand over her mouth and told her to shut up. Ormond threatened to kill Kathy and her mother if Kathy told of the rape.
To the contrary Ormond testified that he took Kathy and Gregg to get some ice cream. They played some games and then returned to Henderson's house after about an hour. Gregg went to bed and Kathy made a pallet on the floor in the living room. Ormond said when he got out of the shower, he went to bed and did not get up until Henderson came home about 11:00 p.m. or midnight. Ormond testified, over objection, that he had not raped Kathy.
About a month after Valentine's day, Henderson noticed a strong odor about Kathy. She took Kathy to the clinic to see Dr. Mary Krafty. The doctor diagnosed Kathy as having gonorrhea. Kathy then told her mother what Ormond had done to her. Henderson stated that she, herself, did not have gonorrhea during 1988, but was tested for it.
Louis Robbins, a detective sergeant with the Meridian Police Department, helped detective Lee Currie obtain a search warrant to obtain a specimen from Ormond to test for gonorrhea. When they arrested Ormond, they Mirandized 3 him and read the waiver form to him because he said he could not read. All his rights were explained to him and he signed the waiver form. Ormond told them he "did not mess with the little girl," but he would not give a written statement. He told them the last time he had been at Kathy's house was on February 14, 1988, and explained he had taken the two children for ice cream. Ormond told the authorities that when Henderson came home, Gregg, Kathy and he were all in bed together, and that Henderson came in and got into bed with the three of them.
The defendant was arrested sometime during the late day of March 18, 1988, a Friday. The next day, March 19, a Saturday, the search warrant was executed and Dr. Kim took a gonorrhea smear for testing from Ormond pursuant to the search warrant. Ormond's initial appearance was held on the following Monday, March 21, 1988, when he was also appointed an attorney. On October 3, 1988, the court held a hearing on the defendant's motion to suppress results of the gonorrhea test obtained pursuant to a search warrant. After hearing testimony from Dr. Kim as to the procedure used to examine Ormond, and Detectives Currie and Robins concerning the procurement of the search warrant, and from Circuit Judge Larry Roberts who issued the warrant, the court overruled the motion to suppress.
Ormond claims that the evidence obtained on that Saturday prior to his having been afforded an initial appearance should have been suppressed because the search violated his right to be free from unreasonable search and seizure the evidence thus constituted the fruit of an illegal search. Furthermore, he asserts, the evidence should have been suppressed because it was obtained in violation of his right to the assistance of counsel. This issue is made up of several sub-issues and is sub-divided below.
Ormond argues that the circuit court judge was available to procure a search warrant on Saturday and was, therefore, also available to provide him with an initial appearance. He contends this delay is, in itself, grounds for suppressing the evidence obtained from the gonorrhea smear taken pursuant to the search warrant.
The Uniform Criminal Rules of Circuit Court Practice provide for initial appearances under Rule 1.04 which states: "Every arrested person shall be taken before a judicial officer without unnecessary delay...." Ormond relies upon the concurring opinion authored by Justice Robertson, joined by four other justices, in Nicholson v. State, 523 So.2d 68, 76 (Miss.1988), construing "without unnecessary delay" under rule 1.04 to mean:
[w]hen custody, booking, administrative and security needs have been met, there is but one possible excuse for delay: lack of access to a judge. In assuring this fact, principled policy demands that the judge be considered just as accessible for the defendant's initial appearance as for procuring a search warrant in a felony investigation. The valid (state law) rules in the field read together prohibit law enforcement from taking advantage of the unavailability of a judicial officer to procure evidence or unfair advantage which would likely become inaccessible after initial appearance.
(See also Willie v. State, 585 So.2d 660, 669 (Miss.1991)).
Recently, this Court has noted that an initial appearance must occur within forty-eight hours after arrest to comply with the "without unnecessary delay" requirements of rule 1.04. Hansen v. State, No. 89-DP-0823, slip op. at 5, n. 1, (Miss. Sept. 11, 1991) (1991 WL 178407) (citing County of Riverside v. McLaughlin, 500 U.S. ----, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991)). However, according to another recent decision of this Court, Veal v. State, 585 So.2d 693, 698-99 (Miss.1991), an unnecessary delay does not void a pre-appearance confession as long as the authorities give Miranda warnings and the suspect gives a waiver. Thus, a delay cannot constitute per se reversible error, even when a defendant gives evidence prior to the delayed appearance.
In the case sub judice Ormond was afforded an initial appearance without unnecessary delay when no interrogation of the defendant was involved as here. Objective evidence, like gonorrhea smears, is not subject to the same analysis as a confession. Ormond gave no inculpatory statements after he was Mirandized and formally waived his rights. He only stated he had not "messed" with the little girl. He also signed a rights waiver the night he was arrested. This sub-issue lacks merit.
Right to Counsel had Attached at the Issuance of
the Search Warrant
Ormond now contends he was entitled to both his sixth amendment right to counsel and the Mississippi constitutional right to counsel during the issuance of the search warrant and during the smear-testing performed pursuant to the search warrant.
The testimony is in dispute as to whether Ormond requested counsel during any of these proceedings. Detective Robins testified at the suppression hearing that the defendant did not request counsel at any time during any of the going to or coming from the gonorrhea test. According to Detective Currie, Ormond did not request counsel at any time during the interrogation or at any time during the gonorrhea test. At trial, however, while Detective Robins said Ormond did not request an attorney before or after his rights were read, Detective Currie said he believed at some point during the interview Ormond asked for an attorney and the interview was stopped. Ormond also testified he asked for an attorney after his rights were read to him, but the policeman said he did not have to have an attorney. Ormond waived his fifth amendment rights by signing a...
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...properly instructed that statements made by counsel are not in evidence, reversal is not required." Id. at 229 (citing Ormond v. State, 599 So.2d 951, 961 (Miss.1992)). We are to assume that the jury followed the trial court's instructions. Williams v. State, 684 So.2d 1179, 1209 (Miss.1996......
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