Simmons v. State, No. 96-KA-01405-SCT.

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtBefore PITTMAN, P.J., and JAMES L. ROBERTS, Jr. and SMITH, JJ.
Citation722 So.2d 666
PartiesAntonio SIMMONS, Joseph Wells, Jr., a/k/a Joseph Bradley Wells and Bobby Varnado, a/k/a Bobby Varnado, Jr. v. STATE of Mississippi.
Docket NumberNo. 96-KA-01405-SCT.
Decision Date29 October 1998

722 So.2d 666

Antonio SIMMONS, Joseph Wells, Jr., a/k/a Joseph Bradley Wells and Bobby Varnado, a/k/a Bobby Varnado, Jr.
v.
STATE of Mississippi

No. 96-KA-01405-SCT.

Supreme Court of Mississippi.

October 29, 1998.


722 So.2d 667
Joseph A. Fernald, Jr., Brookhaven, Jack G. Price B. Calvin Cosnahan, McComb, Attorneys for Appellants

Office of the Attorney General by Billy L. Gore, Attorney for Appellee.

Before PITTMAN, P.J., and JAMES L. ROBERTS, Jr. and SMITH, JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

¶ 1. This out-of-time criminal appeal comes before the Court challenging a jury verdict of guilty issued against the Appellants from the Circuit Court of Lincoln County, Mississippi, Keith Starrett, Circuit Judge, presiding.

¶ 2. According to the testimony of two young girls, Girl A and Girl B1, aged 11 and 13 respectively at the time of the incident, the three Appellants forced the girls to perform oral sex and then vaginally raped them on January 21, 1996.

¶ 3. Following a three (3) day trial by jury on August 12-14, 1996, the three (3) Defendants/Appellants, Antonio Simmons ("Simmons"), Joseph Wells ("Wells") and Bobby Varnado ("Varnado"), were convicted of the following: conspiracy (to commit kidnaping, rape and sexual battery) charged in count one (1); sexual battery charged in counts four (4) and five (5) and rape charged in counts six (6) and seven (7). The convictions followed a seven (7) count indictment charging the defendants with multiple sexual offenses committed on January 21, 1996.

¶ 4. Count one (1) of the indictment charged the Appellants with conspiracy to commit the crimes of kidnaping, rape and sexual battery. Count two (2) charged the Appellants with kidnaping Girl B and count three (3) charged the Appellants with kidnaping Girl A. Count four (4) charged the Appellants with sexual battery (oral sex) against Girl B, while count five (5) charged them with sexual battery (oral sex) against Girl A. Count six (6) charged the Appellants with forcible rape of Girl B, a female child

722 So.2d 668
under fourteen years of age, and count seven (7) charged them with the forcible rape of Girl A, also a female child under fourteen years of age

¶ 5. The jury convicted the Defendants/Appellants of all charges except counts two (2) and three (3) of kidnaping, of which all three were acquitted.

¶ 6. The jury was not able to fix a penalty for the charges of rape. Following the presentence reports, Judge Starrett imposed the following sentences.

¶ 7. Each of the Defendants/Appellants received concurrently running sentences and a period of post-release supervision. In sum, Simmons received twenty-three (23) years to serve with eleven (11) years suspended. Wells was sentenced to serve sixteen (16) years with eight (8) years suspended. Varnado basically received a sixteen (16) year sentence with eight (8) years suspended.

¶ 8. On appeal, the Appellants are represented individually by different counsel, and have filed separate briefs. Aggrieved by the decision reached in the court below, the Appellants individually raise the following assignments of error:

SIMMONS' ASSIGNMENTS OF ERROR

I. THE COURT ERRED IN ALLOWING THE MOTHER OF GIRL B TO TESTIFY AS TO HEARSAY RELATED TO HER BY GIRL B.
II. THE COURT ERRED IN ALLOWING DR. LEROY BYRD TO TESTIFY CONCERNING FACTS INVOLVED WITH THE RAPE, AS RELATED TO HIM BY THE VICTIMS, AT THE TIME OF HIS MEDICAL EXAMINATION OF THE VICTIMS.
III. THE COURT ERRED IN ALLOWING THE PROSECUTION TO INTRODUCE TESTIMONY CONCERNING OUT-OF-COURT LINEUP IDENTIFICATION OF VARNADO BECAUSE EVIDENCE OF THE LINEUP HAD BEEN PREVIOUSLY SUPPRESSED AS IT WAS IMPERMISSIBLY SUGGESTIVE.
IV. THE COURT ERRED IN OVERRULING DEFENSE COUNSEL'S MOTION FOR A DIRECTED VERDICT.

WELLS' ASSIGNMENTS OF ERROR

I. THE COURT IMPROPERLY ALLOWED DR. LEROY BYRD TO TESTIFY AS AN EXPERT ON RAPE.
II. THE VERDICT OF THE COURT IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AS PRESENTED AT TRIAL.

VARNADO'S ASSIGNMENTS OF ERROR

I. THE TRIAL COURT ERRED IN ALLOWING DR. LEROY BYRD TO TESTIFY AS AN EXPERT IN REGARDS TO THE INJURIES OF GIRL A AND GIRL B.
II. THE VERDICT OF THE JURY IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND IS NOT SUFFICIENT TO SUSTAIN THE CONVICTION.

¶ 9. This Court holds that the Appellants' points of error are without merit. The trial court and jury, after hearing all of the evidence, chose to convict the Appellants of the charges related to the rape of Girl A and Girl B. This Court can find no error which would require us to disturb the jury's guilty verdict. As a result, the convictions of Antonio Simmons, Bobby Varnado and Joseph Wells are affirmed.

STATEMENT OF FACTS

¶ 10. On the afternoon of Sunday, January 21, 1996, Girl A and Girl B, ages 11 and 13 respectively, who were residents of the Brookhaven area, willingly entered an automobile driven by nineteen (19) year old Antonio Simmons, and occupied by nineteen (19) year old Bobby Varnado and eighteen (18) year old Joseph Wells. The Appellants drove to the Spanish Inn and attempted to rent a room, but decided not to stay at the motel. Girl A and Girl B testified that during the next three (3) or so hours, from 5:00 p.m. until 8:30 p.m., they were forced to

722 So.2d 669
perform oral and vaginal sex with Simmons, Varnado and Wells

¶ 11. Girl A testified that the driver of the car, Simmons, told the girls that they could either perform oral sex or die. Girl A also testified that Wells and Varnado forced her to give them oral sex in the car soon thereafter. Girl A said that Varnado required her to have vaginal sex in an abandoned apartment house in Magnolia, Mississippi, a short time later.

¶ 12. Girl B testified that Simmons was the one who first suggested that the girls perform oral sex. Girl B said that Simmons forced her to perform oral sex on him in a McDonald's parking lot and threatened to kill her if she refused him. Girl B stated that she was forced to have vaginal sex with Simmons and Wells a short time later at the abandoned apartment house.

¶ 13. Varnado, the only Appellant who testified, denied that any sexual acts took place and claimed that the girls merely went joyriding with the three Appellants.

¶ 14. Subsequently, the Appellants dropped Wells off at his house and eventually returned the girls to Brookhaven, Mississippi. After the girls arrived at home, they were taken to a local hospital and examined by Dr. Leroy Byrd, III.

¶ 15. At trial the doctor was asked to identify the physical condition of the minor children. Dr. Byrd testified that upon examining the girls, he detected vaginal injuries due to excessive stretching in a concentric fashion. Dr. Byrd opined that the injuries he observed were consistent with those associated with forceful penetration by a cylindrical object. Dr. Byrd also put together a standard rape kit containing samples of bodily fluids, the clothing of the victims and other items of evidence. The Defendants/Appellants objected to Dr. Byrd's testimony claiming that the doctor's area of practice, emergency medicine, did not qualify him as an expert in the area of gynecology.

¶ 16. At the close of the State's case-inchief, all three of the Defendants/Appellants moved for a directed verdict of acquittal. The trial judge overruled the motion, finding that the State had made a prima facie showing as to each count.

¶ 17. The jury retired for deliberation and returned with a verdict of acquittal on the kidnaping charges and a guilty verdict with respect to all other charges. The Appellants now bring the following claims before this Court.

DISCUSSION OF THE ISSUES

SIMMONS' ASSIGNMENTS OF ERROR

I. THE COURT ERRED IN ALLOWING THE MOTHER OF GIRL B TO TESTIFY AS TO HEARSAY RELATED TO HER BY GIRL B.

¶ 18. Simmons alleges in his first claim that the trial court committed reversible error when it allowed Girl B's mother to testify about a statement made by Girl B to her mother as it was inadmissible hearsay, elicited under duress. The Appellee asserts that the trial judge was correct in holding that Girl B's statement to her mother qualified as an exception to the hearsay rule under Miss. R. Evid. 803(1) or (2).

¶ 19. The record indicates that Girl B and her siblings were expected to come home before dark, between 5:30 p.m. and 6:00 p.m. Some of Girl B's siblings and friends told the mother that Girl A and Girl B had gotten into a car with three men. When Girl B was late returning home, her mother became concerned and called the Brookhaven Police and her family to help locate the girl. After searching for Girl B in vain, her mother returned home around 9:00 p.m. where she found Girl B who had returned at approximately 8:30 p.m.

¶ 20. The mother testified that she told her daughter she was going to hug her first because she was alive and then spank her because she was late and had worried her family. The mother testified that Girl B appeared to be very disturbed. The mother said Girl B was shaking her leg and jumping around in an excited state. "When she's jumping, something is wrong," the mother said. "She never shakes." After observing her daughter's condition, the mother decided not to spank the girl.

722 So.2d 670
¶ 21. After asking Girl B for the second time why she was late returning home and if anything had happened to her, Girl B replied, "Yes, mama, and it hurted." The Appellant objected to this statement as inadmissible hearsay. However, the trial judge overruled the objection and held that it was admissible by virtue of Miss. R. Evid. 803(1) and (2). The thrust of Simmons' first argument is that the victim's statement did not qualify for the exceptions because it was made under duress from the mother who was angry with the child for being late and had threatened to spank her, thus eliminating the spontaneity of Girl B's statement.

¶ 22. The Mississippi Rules of Evidence 803(1) and (2) provide exceptions to the hearsay rule and read as follows:

(1) Present
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14 practice notes
  • Edmonds v. State, No. 2004-CT-02081-SCT (Miss. 1/4/2007), No. 2004-CT-02081-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • January 4, 2007
    ...juries usually place greater weight on the testimony of an expert witness than that of a lay witness. See generally Simmons v. State, 722 So. 2d 666, 673 (Miss. 1998); see also United States v. Benson, 941 F.2d 598, 604 (7th Cir. 1999) (an expert's "stamp of approval" on a particu......
  • Edmonds v. State, No. 2004-CT-02081-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • May 10, 2007
    ...juries usually place greater weight on the testimony of an expert witness than that of a lay witness. See generally Simmons v. State, 722 So.2d 666, 673 (Miss.1998); see also United States v. Benson, 941 F.2d 598, 604 (7th Cir.1991) (an expert's "stamp of approval" on a particular......
  • Eskridge v. State, No. 1999-DP-00769-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • June 29, 2000
    ...admissible where it will assist the trier of fact to understand the evidence or to determine a fact in evidence." Simmons v. State, 722 So.2d 666, 672 (Miss.1998)(citing Lentz v. State, 604 So.2d 243, 246 In considering the admissibility of an expert's testimony, we ask: "[i]s the......
  • Shelton v. State, No. 2001-KA-00710-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • July 31, 2003
    ...denied the motion for directed verdict. Subsequently, Shelton proceeded to introduce evidence on his own behalf. In Simmons v. State, 722 So.2d 666, 672 (Miss.1998), this Court held that "[w]hen the defendant proceeds with his case after the state rests and the court overrules the defe......
  • Request a trial to view additional results
14 cases
  • Edmonds v. State, No. 2004-CT-02081-SCT (Miss. 1/4/2007), No. 2004-CT-02081-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • January 4, 2007
    ...juries usually place greater weight on the testimony of an expert witness than that of a lay witness. See generally Simmons v. State, 722 So. 2d 666, 673 (Miss. 1998); see also United States v. Benson, 941 F.2d 598, 604 (7th Cir. 1999) (an expert's "stamp of approval" on a particular witnes......
  • Edmonds v. State, No. 2004-CT-02081-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • May 10, 2007
    ...juries usually place greater weight on the testimony of an expert witness than that of a lay witness. See generally Simmons v. State, 722 So.2d 666, 673 (Miss.1998); see also United States v. Benson, 941 F.2d 598, 604 (7th Cir.1991) (an expert's "stamp of approval" on a particular witness's......
  • Eskridge v. State, No. 1999-DP-00769-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • June 29, 2000
    ...is admissible where it will assist the trier of fact to understand the evidence or to determine a fact in evidence." Simmons v. State, 722 So.2d 666, 672 (Miss.1998)(citing Lentz v. State, 604 So.2d 243, 246 In considering the admissibility of an expert's testimony, we ask: "[i]s the field ......
  • Shelton v. State, No. 2001-KA-00710-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • July 31, 2003
    ...denied the motion for directed verdict. Subsequently, Shelton proceeded to introduce evidence on his own behalf. In Simmons v. State, 722 So.2d 666, 672 (Miss.1998), this Court held that "[w]hen the defendant proceeds with his case after the state rests and the court overrules the defendant......
  • Request a trial to view additional results

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