Sanford v. State

• Decision Date: 30 May 1979
• Docket Number: No. 50894,50894
• Citation: Sanford v. State, 372 So.2d 276 (Miss. 1979)
• Parties: Bobby Louis SANFORD v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 276

372 So.2d 276

Bobby Louis SANFORD v. STATE of Mississippi.

No. 50894.

Supreme Court of Mississippi.

May 30, 1979.

Walls & Buck, Robert E. Buck, Greenville, for appellant.

A. F. Summer, Atty. Gen., by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.

BROOM, Justice, for the Court:

Forcible rape is the crime for which Bobby Louis Sanford was convicted in the Circuit Court of Yalobusha County. He appeals from a sentence of fifty years imprisonment, and bases his argument in the main on the trial court's rejection of his requested "alibi" jury instruction. We affirm. ¹

David Thorpe and his eighteen-year-old female companion (prosecutrix herein), both of Wisconsin, entered this state on June 12, 1976, en route to Keesler Field for a visit with the prosecutrix's sisters. The day's motorcycle trip was to terminate in a camping area at Enid Dam Park in Yalobusha County. At about 9:15-9:30 p. m., the couple stopped at a rest area off of Interstate Highway 55 to examine a map. While there, a car occupied by her soon-to-be attackers passed through the area, according to prosecutrix. Satisfied with their directions, the couple proceeded to the park, only to find that motorcycles were not permitted. Thorpe pulled his motorcycle alongside the road to permit a car behind him to pass when a second car appeared, a door swung open, the motorcycle fell and Thorpe tumbled down an embankment.

The occupants of the automobile directed the two motorcyclists into its back seat at gunpoint where they were forced to keep their heads down while the car was driven an unspecified distance before turning onto a gravel road where it was stopped. Next the car occupants ordered the couple out of the car and robbed them. The prosecutrix was taken a short distance from the car and Thorpe was again forced to its back seat. Then the car was moved forward a short distance, and Thorpe was able to turn around and view his companion standing nude from the waist down with one man kneeling beside her. He was then put into the trunk of the car, but heard her cries and male voices for about twenty minutes.

Testimony of the prosecutrix was that when the car first stopped, two of the men walked her down the road and partially undressed her. She was then carried to a field while pleading with them that they could obtain another girl and that she was on her honeymoon. Her pitiful pleading went unheeded, and she was raped by each of the four occupants of the automobile. Afterward she was permitted to dress and was returned to the vicinity of Thorpe where they were required to lie face down on the ground as the automobile departed. Immediately afterward they walked some distance to a dwelling where law enforcement officers were called. Meanwhile, the abandoned motorcycle had drawn official attention. Around 11:00 p. m. Henry Gray of the Yalobusha County Sheriff's Department responded to a call and met the park officials at the motorcycle's location. Shortly thereafter a park ranger radioed that the missing owners were at a nearby cabin. After conversing, Officer Gray, Thorpe and the prosecutrix drove around and located the scene of the crime. Afterward she was taken to the county hospital where Dr. Harold Sexton performed a pelvic examination at about 2:15 on the morning of June 13, 1976. He found male spermatozoa, some dirt and a few abrasions on her hips and buttocks.

When first interviewed after being taken into custody July 2, 1976, Sanford (then seventeen years old) denied any involvement in the rape. However, upon a second interview, he orally confessed to Sheriff Jones of Yalobusha County, Sheriff Bryan of Panola County and Deputy Sheriff Rudd, in the presence of his mother, that he was the first of the four to rape prosecutrix. Thereafter he led officers to the couple's stolen motorcycle helmets which had been concealed. Sanford's confession, admitted into evidence after a lengthy suppression hearing, is the only testimony linking him to the crime. The remainder of the state's evidence focuses upon the establishment of the crime of rape, the time and place of its occurrence, and the corpus delicti essentials.

At trial Sanford denied having waived his Miranda rights, denied the confession, and denied that he directed the officers to the motorcycle helmets. His testimony was that he resided in his mother's home and was there the entirety of June 12, 1976. He testified that he arose at 8:30 a. m., had breakfast, cut the lawn, watched television and about 4:30 in the afternoon worked with his mother and sisters in their garden until approximately 7:30 or 8:30. Afterward he called his girl friend at about 9:20 p. m. and, because his car was in the shop, remained at home with his family, ultimately retiring at about 10:30 or 10:35. His mother did not observe the appellant retire, but maintained that he was at home when she returned at about 10:30. Sanford's sister, Emma Jean, testified he was at home the entire evening and retired about 11:00 or 11:30. Neither Thorpe nor the prosecutrix could identify Sanford as one of the rapists although they did describe their assailants as young black males.

After the jury found Sanford guilty, he was sentenced to fifty years imprisonment. Here he argues as grounds for reversal two errors: (1) refusal of the trial court to grant a requested alibi instruction, and (2) the overruling of Sanford's motion to suppress the confession. We address these propositions in reverse order.

WAS THE CONFESSION ERRONEOUSLY ALLOWED INTO EVIDENCE?

Although the testimony about the confession was in conflict, the trial court found from abundant evidence that Sanford was appropriately advised of his rights and that he confessed knowledgeably without threats, coercion or improper inducements. Moreover, all of the officers who participated in the interrogation gave testimony to its voluntariness in accord with Agee v. State, 185 So.2d 671 (Miss.1966), and its progeny. The voluntariness was contradicted by Sanford and his mother, but we have long held that such contradictory evidence presents a question of fact to be determined by the trial court. We have consistently held in such cases that upon review this Court will not disturb the trial court's finding unless it appears to be contrary to the evidence. Clemons v. State, 316 So.2d 252 (Miss.1975); Harrison v. State, 285 So.2d 889 (Miss.1973); and Ivey v. State, 246 Miss. 117, 149 So.2d 520 (1963). Our opinion is that admitting the confession was not error because ample evidence supported the trial court's determination.

WAS THE ALIBI JURY INSTRUCTION ERRONEOUSLY REJECTED?

"Alibi" was Sanford's sole defense, other than objecting to the confession. His testimony and that of his mother and sister we have previously summarized, supra. Pursuant to his alibi defense, Sanford requested Instruction D-7, the language of which and accompanying colloquy follow:

The Court instructs the jury that if you believe from the evidence that on June 12, 1976 that Bobby Sanford was at home in the presence of his mother and sister, then you must return a verdict of Not Guilty.

The district attorney objected, stating:

I object to D-7 because it's misleading to the Jury. The instruction says if they believe that he was at home at any time on June 12, 1976, he should be found not guilty, and the State has proved that this alleged act occurred at night time, so it's misleading to the Jury. He could have been home any time that day and still committed the crime.

COUNSEL FOR DEFENDANT (Mr. Kelly): I'll put in the time, Your Honor.

THE DISTRICT ATTORNEY (Mr. Chatham): I believe this instruction is for an alibi defense.

COUNSEL FOR DEFENDANT (Mr. Kelly): Your Honor, for the record, Defendant moved (sic) the Court to permit him to amend Instruction D-7 to include the times of from 9:30 p. m. on June 12, 1976 until 2:15 a. m. on June 13, 1976.

THE COURT: And there's not one scintilla of proof in that regard. The only thing we have in this record is that Mama went to bed at 10:30, a (sic) minutes after 10:35, right after the news. One sister went at 11:30 he went to bed about 11:30, and one sister, I believe she said she was still up at that time. There is no proof as to any other time he was there or anything else. And the Court will refuse that instruction.

" Alibi" as a defense is well established in our criminal jurisprudence. We have held many times that alibi testimony, if believed by the jury when considered along with all the other evidence, requires acquittal. Without question, one who interposes an alibi as the theory of his defense, and presents testimony in support of such a plea, is entitled to a jury instruction focusing upon such a theory. Here there is no indication that Sanford's counsel was not permitted to orally argue the "alibi" during the course of his jury argument made after all the testimony concluded. Although such an argument may have been made, we cannot be certain inasmuch as the record contains no transcript of closing jury arguments. We think it appropriate to state here that in trials of criminal cases (more especially for felonies) presiding judges may (and must if requested) require that jury arguments be made part of the record. Then on appeal, either side in the interest of justice may designate placing a transcription of the jury arguments in the record to be presented to us.

Instruction D-7, as initially requested was improper for several reasons. Not only is it (as originally worded) peremptory in form, requiring acquittal in the event the jury should believe that the appellant Sanford was at home any instant of the daylight or dark hours of June 12, 1976, but it was also clearly improper for failing to limit (to any particular time frame or to daylight or dark hours of June 12, 1976) the appellant's being at home. Further, the instruction is improper in that it should have directed the jury to base its finding not only upon that portion of...