Summary
In Chatman v. State, 244 Miss. 659, 145 So.2d 707 (1962), a rape conviction was reversed when the defense was not allowed to recall the prosecutrix as an adverse witness in order to ask her if she stated she thought the rape was a joke.
Summary of this case from Readus v. StateOpinion
No. 42301.
October 15, 1962.
1. Criminal law — witnesses — State entitled to explain absence of witness.
State is entitled to explain absence of a witness, and accordingly was entitled, in rape prosecution, to introduce testimony as to absence from country of physician who had examined prosecutrix.
2. Rape — impeachment of prosecutrix — witnesses — Court's refusal to allow witnesses to testify, reversible error.
Rape conviction was required to be reversed for failure to permit defendant to introduce testimony of three witnesses as to their conversations with prosecutrix in which she assertedly stated she had been out with defendant the evening before alleged rape and that, on night in question, he had carried her out, forced her, and that, after acts, she had laughed, and that the witnesses surmised she was joking and playing.
3. Witnesses — laying predicate — impeachment — witnesses — Court should have permitted witnesses to testify.
Defendant should have been permitted to introduce testimony of witnesses as to their conversations with prosecutrix, even though he had not properly laid predicate by examining her as to the conversations, where he requested permission to call her as "adverse witness" for evident purpose of laying the proper predicate.
4. Witnesses — right of further cross-examination.
Subject to reasonable control by trial court, in order that abuse may not be permitted, defendant during presentation of defense should be accorded right and privilege of calling for further cross-examination any State witness who has previously testified.
5. Rape — argument of district attorney — reversible error.
Absent any claim that anyone other than prosecutrix and defendant were present when alleged rape occurred or circumstances precluding Court from saying that guilt was so manifest that no fair jury could have returned verdict other than guilty, comment by district attorney that evidence was undisputed required reversal as alluding to defendant's failure to testify.
Headnotes as approved by Lee, P.J.
APPEAL from the Circuit Court of Adams County; JAMES A. TORREY, J.
Robert Y. Wood, Jr., Joseph S. Zuccaro, Natchez, for appellant.
I. The Court erred in allowing Deputy Sheriff Robinson to testify in the presence of the jury, over defense's objections, that Dr. Lima (M.D.), who is alleged to have treated the prosecutrix (the record is silent as to what he treated her for), was absent from the State of Mississippi and absent from the United States, in the absence of any subpoena being issued for Dr. Lima or any return being made and no affidavit before the Court stating to what the doctor would testify and what type of treatment, if any, he performed upon the prosecutrix.
II. The Court erred in allowing the witness J.T. Robinson to go into details of alleged complaint made by the prosecutrix, Mahalia Brown, as to the circumstances under which she was raped and further allowing said witness to give testimony that the complaint charged the defendant with rape by name and did name him, and further allowing him to testify, over the defense's objections, that the State made charges against the defendant as a result of her complaint.
III. The Court erred in refusing to let defendant's witnesses Wilbert Edwards, Willie Johnson and Walter Johnson testify that the prosecutrix had told them that she had been out with the defendant on the previous Friday night, same being the night before the night of the alleged rape, when the prosecutrix had stated on oath that she had never been out with him before the night of the alleged rape and, further the prosecutrix denied on oath that she knew these witnesses and denied that she had ever talked to them in her life.
IV. The Court erred in refusing to allow the State's witness Jesse Lee Reed to testify as to whether or not she knew the general reputation of the prosecutrix, Mahalia Brown, in the community in which she lives, as to chastity and morality.
V. The Court erred in refusing to allow the defendant to recall the prosecutrix, Mahalia Brown, as an adverse witness for further examination and for the purpose of laying alleged predicate, which the Court said had not been laid, concerning Mahalia Brown's conversation with the witnesses, Willie Johnson, Walter Johnson and Wilbert Edwards, the Court limiting this testimony and allowing the same to be made outside the presence of the jury, but excluding same.
VI. The Court erred in overruling defendant's motion for a mistrial due to prejudicial argument of the District Attorney in which he commented on defendant's failure to testify as shown and set forth in the special bill of exceptions signed by the Circuit Judge as follows:
"That, during the final argument by the District Attorney in addressing the jury and commenting on the evidence connected with the details of the alleged rape, before and after, made the statement that `it is the undisputed evidence in this case'."
to which the defendant objected, said objection being overruled; and wherein defendant's motion for a mistrial was overruled and the record shows that the defendant did not take the stand.
VII. The Court erred in overruling defendant's motion for a new trial and refusing to grant the defendant's request for a directed verdict of "not guilty".
VIII. Collation of authorities: Ashford v. State, 81 Miss. 414, 33 So. 174; Bonelli v. Bowen, 70 Miss. 142, 11 So. 791; Boyd v. State, 239 Miss. 589, 123 So.2d 857; Fairley v. State, 225 Miss. 371, 83 So.2d 278; Harrison v. State, 168 Miss. 699, 152 So. 494; Hicks v. State (Miss.), 47 So. 524; Holifield v. State, 132 Miss. 446, 96 So. 306; Jakup v. Lewis Grocer Co., 190 Miss. 444, 200 So. 597; Johnson v. State, 213 Miss. 808, 58 So.2d 6; Lambert v. State, 199 Miss. 790, 25 So.2d 477; Lauderdale v. State, 227 Miss. 113, 85 So.2d 822; Martin v. State, 200 Miss. 142, 26 So.2d 169; McLaurin v. State, 129 Miss. 362, 92 So. 289; Phillips v. State (Miss.), 43 So.2d 208; Redding v. State, 211 Miss. 855, 53 So.2d 7; Richardson v. State, 196 Miss. 560, 17 So.2d 799; Rogers v. State, 204 Miss. 891, 36 So.2d 155; Sanders v. State, 150 Miss. 296, 116 So. 433; Truckers Exchange Bank v. Conroy, 190 Miss. 242, 199 So. 301; Upton v. State, 192 Miss. 339, 6 So.2d 129.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. The testimony of Deputy Sheriff Robinson as to the absence of Dr. Lima. Holmes v. State, 211 Miss. 436, 51 So.2d 755; III Wigmore, Evidence, Secs. 285, 290.
II. The trial court did not err in allowing witness Robinson to go into details of the complaint made by the prosecutrix. Lauderdale v. State, 227 Miss. 113, 85 So.2d 822.
III. As to the witnesses, Wilbert Edwards, Willie Johnson and Walter Johnson.
IV. The trial court did not err in overruling appellant's motion for a new trial based on the weight of the evidence.
V. The trial court did not err in not allowing the recall of Mahalia Brown as an adverse witness.
VI. The trial court did not err in overruling appellant's motion for a mistrial on account of remarks of the prosecuting attorney. Lambert v. State, 199 Miss. 790, 25 So.2d 477.
VII. The trial court did not err with respect to certain objections made and overruled.
Ike Chatman was found guilty by a jury in the Circuit Court of Adams County of the forcible rape of Mahalia Brown. They certified their inability to agree upon his punishment, but also recommended mercy. From the judgment, sentencing him to life imprisonment in the state penitentiary, Chatman appealed.
Mahalia was thirty-two years of age. She had two sons, Frank and Foster Garner by her first "common-law husband", as she designated him, and another son, J.W. Brown, by her second "common-law" husband. She explained that the latter's name was like that because she was not married at the time. She said that she lived with the other men as common-law wife. She was then lawfully married about four years ago, but she and her husband separated shortly thereafter and were still separated at the time of this alleged crime.
According to her version, although she had seen Ike Chatman several times in Natchez, he had never asked her for a date. About nine o'clock Saturday night, May 13, 1961, she was on her way out St. Catherine Street going to her home on Homochitto Street. She said that she saw Chatman, who said, "Hi, you going home", and she replied that she was. Then he told her that he would take her home and that he was going to Rinky Dink Inn. He also asked her if she and her husband were together and she told him, "No". She got into the car. He then said he had to go over the by-pass and would then put her out at home. Actually he went across the Mississippi River to Vidalia, Louisiana to collect for some whiskey, as he said. He then drove to a filling station and got some gasoline. After leaving this place, instead of taking her home, he said that he had to get rid of a gallon of bootleg liquor, and would get her something to eat, since she had said that she was hungry. They went to Reed's place where she ate a fish sandwich and drank part of a quart of beer. They were sitting at the table together. She was not forced to go in there, and, at that time, there was no reason to be made. They stayed there "not quite an hour".
Leaving the eating place, under Chatman's promise to take her home, they crossed a bridge. Then it was that he came out with a knife in one hand and a pistol in the other, and, with threats of violence to her if she resisted, he made her disrobe and lie on the front seat, where he criminally assaulted her. He then made her get into the rear seat and assaulted her again. He let her put her clothes on, and, after driving a short distance, he tried to force her to practice sodomy on him. Following this, he took her home. At that time it was four o'clock on Sunday morning. She said that, as he left, he threatened to kill her if she told anybody about what had occurred. She said that, immediately after she got home, she took "a corsage * * * with some lysol", evidently meaning a douche.
She admitted that, although her neighborhood was thickly settled, she did not make any complaint to any of her neighbors. She had a telephone in her home, but she called no one until seven or eight o'clock, "I don't really know the time, but it was in the morning", when she called the police, and they told her not to come to the station. No witness from the police department corroborated her complaint.
She went to the Charity Hospital in Natchez Sunday night. The superintendent of the hospital testified that, according to the records, Mahalia Brown was treated at 9:45 p.m. Sunday, May 14, 1961, by Dr. Lima, who was shown to be either in Brazil or Argentina.
The defendant did not testify. Several witnesses, offered by the defendant, testified that the reputation of the prosecutrix for chasity and morality in the community in which she lived was bad.
Defendant's counsel then sought to offer in evidence a witness by the name of Walter Johnson to show that he had a conversation with the prosecutrix on Monday afternoon after the alleged rape. The State objected that no predicate for impeachment had been laid. This was sustained. Council then said, "We call Mahalia Brown as an adverse witness". The district attorney said, "That's highly improper and we object to that at this time. The State has rested its case." The court replied, "I don't think you can call her as an adverse witness anyway, Mr. Zuccaro. The objection will be sustained". Counsel then asked that the jury be excused, and the witness was questioned. He testified that Mahalia said that Chatman carried her out, forced her, and carried her three rounds, and that she laughed. He, and the other two men with him, Wilbert Edward and Willie Johnson, all thought that she was joking and playing. Besides, she said that she was out with him the night before. There was an agreement that the other two named persons would also testify to the same facts, and that the State would object, and that the court would sustain the objection.
The defendant assigns and argues numerous errors. The Court notices only three, namely, (1) the alleged error in permitting the officer to testify that Dr. Lima was not in the country; (2) the alleged error in the court's refusal to let him introduce the evidence of the three witnesses as to their conversation with the prosecutrix on Monday afternoon; and (3) the alleged reversible error of the district attorney in his final argument to the jury "and commenting on the evidence connected with the details of the alleged rape, before and after, made the statement that `it is the undisputed evidence in this case'," at which time, the defendant's counsel objected, their objection was overruled, and they then made a motion for a mistrial, and the motion was overruled.
(Hn 1) On the first question, the State contends that it had the right to show the unavailability of the doctor, because the failure to do so, would indicate, as the most natural inference, that the State feared to do so because it would be unfavorable. It is a well known principle that such an inference is open to explanation by circumstances, which make some other hypothesis a more natural one than the party's fear of exposure. The State is, therefore, entitled to explain the absence of the witness. This principle applies equally in criminal as in civil cases both for the prosecution and the accused. Wigmore on Evidence, 3d Ed., Secs. 285 and 290. Cf. Holmes v. State, 211 Miss. 436, 51 So.2d 755, where, on the competency of the confession, only one of the State's witnesses testified, and the opinion, referring to the two other witnesses, said: "Neither of these two officers was called upon to testify, and no reason is shown for their failure to testify". This expression clearly indicates that the above principle was well known to the court. Obviously there was no error in this regard.
(Hn 2) On the second proposition, of course, strictly speaking, counsel for the defendant should have asked the prosecutrix, while she was on the stand, if she had the conversation, detailed by the offer of the three witnesses, at the time and place stated, and whether she was laughing about the matter. (Hn 3) She would have had the opportunity to deny. If she did deny it, then of course, these witnesses could have been used by way of impeachment. However, counsel did not do this. But then they did ask to call her "as an adverse witness". The evidence purpose was to lay the proper predicate. The proper request should have been for additional cross-examination.
(Hn 4) It would be difficult to imagine any distinction whatever, in the lawyer's field of inquiry, whether the witness is designated "adverse" or "for cross-examination". Subject to reasonable control by the trial court in order that abuse may not be permitted, the defendant, during the presentation of his defense, should be accorded the right and privilege of calling for further cross-examination, any State witness, who has previously testified. Oftentimes, the experienced lawyer, after questioning a witness, advises the court that he reserves the right to recall for further cross-examination. This Court has held that even a defendant, after he has testified and closed his case, could still be recalled in order to lay a predicate. Autry v. State, 230 Miss. 421, 92 So.2d 856. The opinion cited 58 Am. Jur., Witnesses, Sec. 96, pp. 80-81, in part as follows: "An accused may waive his constitutional immunity from giving testimony against himself by offering himself as a witness. By electing to testify, the accused subjects himself to cross-examination and impeachment, and makes permissible comment by the prosecuting attorney upon his testimony. When he voluntarily takes the witness stand in his own behalf, he waives his constitutional privilege of not answering proper questions that may tend to convict him of the crime for which he is on trial, and, as has frequently been stated, he subjects himself to the same rules that govern other witnesses, and further, he subjects himself to cross-examination and impeachment to the same extent as any other witness in the same situation.
"* * * Under this rule the accused by taking the witness stand in his own behalf waives the constitutional guaranty against compulsory self-crimination not only as to matters about which he has given testimony in chief, but also concerning any matter pertinent to the issue on trial regardless of the extent of the direct examination, and cannot then refuse to testify to any fact which would be competent evidence in the case if proved by any other witness." (Emphasis supplied.)
The proposed evidence, if believed, was very important to the defense. It was to the effect that the prosecutrix was laughing about the matter. Even if the action of the court could be construed to involve a question of discretion, as a matter of fact, the exercise of discretion, under the particular circumstances, required that counsel be permitted to recall the witness and lay a predicate so that the evidence of the three witnesses tendered might be admissible.
(Hn 5) On the third proposition, in Lambert v. State, 199 Miss. 790, 25 So.2d 477, involving alleged error on the part of the district attorney in his closing argument, amounting to a comment on the failure of the defendant to testify, the opinion collated a large number of previous decisions of the Court on this particular point, in which there were both affirmances and reversals. But the opinion pointed out that, in every case except the Johnson case therein mentioned, the Court had reversed for comments of the character there under consideration, unless "(1) there was an eye-witness other than defendant available to the accused and who was not placed upon the stand by him, or (2) the guilt of defendant was so manifest that no fair jury could have returned a verdict other than guilty." See also Martin v. State, 200 Miss. 142, 26 So.2d 169.
When the alleged rape occurred, there was no claim that anyone other than the prosecutrix and the defendant were present. Besides, the lack of outcry and other circumstances preclude this Court from saying that the guilt of the defendant was so manifest that no fair jury could have returned a verdict other than guilty.
For the errors assigned under propositions (2) and (3), the cause is reversed and remanded for a new trial.
Reversed and remanded.
Kyle, Ethridge, Rodgers and Jones, JJ., concur.