McQueen v. State

For the Court:

ON PETITION FOR REHEARING

Appellant’s conviction of forcible rape was affirmed by a panel of three justices. However, on petition for rehearing a majority of the justices have concluded that the evidence was not sufficient to prove appellant forcibly raped the prosecutrix. Accordingly, the original opinion is withdrawn and this opinion is substituted therefor.

Appellant has assigned seven errors, but because we are reversing on the sufficiency of the evidence, we do not address the remaining assignments of error.

The prosecutrix was a fourteen year old unmarried female and was visiting her sister, Elizabeth McQueen, who had recently moved to Picayune. Elizabeth McQueen and appellant were husband and wife but had recently separated in New Orleans. On the date in question appellant brought some furniture from New Orleans to Picayune, and after he unloaded the furniture asked if he could take the baby for a ride. The baby was the two year old child of the appellant and Elizabeth McQueen. Elizabeth McQueen did not want the baby to accompany appellant alone so she requested that prosecutrix accompany them. Appellant, the prosecutrix and the baby left in appellant’s pickup, and Mrs. McQueen testified that when they returned the prosecutrix was acting strange, started to cry, and was shaking. She stated that appellant stayed only about fifteen or twenty minutes and after he left the prosecutrix told her that appellant made her have sex with him. The prosecutrix was called as a witness and was asked to tell what happened while they were absent from the house. The prosecu-trix testified as follows:

Okay, Dennis McQueen had come over Wednesday, and he was there for a little while, and he said he had to go to the store, and he asked if the baby could go with him, and the baby started crying, so Elizabeth asked me if I would go to keep an eye on the baby. So I went, and we went to Bill’s Store, and we got some coke, and we was leaving from the store, and he said he was lost, and he brought me back on this road, and he said he had to use the bathroom, and he turned the truck around, and he turned off the lights, and I locked my side of the door, and he come around on my side and told me to get out, so I did. He told me to take off my clothes, but leave one leg on, and I was scared, and I told him that I wanted to go home. So he told me to go around on the other side and lay on the driver’s seat side and lay half way. So I did, and he told me to put my legs up on his shoulders and I did, and I was crying, and he made the baby sit on the other side of the truck, on the passenger’s side, and he told me that he wasn’t going to hurt me, and it wasn’t going to take long, and while we was doing it and that, he told that, I’ve got news for you, it’s in, and I started crying and I told him that I wouldn’t — that I didn’t want to get pregnant, and he told me that he wasn’t going to come inside me, and so after he was finished, he told me, he says not to say anything to Tootie that he would do all the talking. When we got home, Tootie was on the — Elizabeth was on the porch, and she asked what took us so long, and he said that the baby wanted to go riding around. So we went and sat inside of the house, and I was crying and trying to tell Tootie — Elizabeth what happened, and he was sitting there nervous and that, and the baby had said, Janie — well, at the last part, he said, “Janie was playing with daddy’s worm,” and then he tried to change the subject, and after that he left, and then after that, I told my sister what happened, and she went — we went to the Police Station and gave my statement and that, and then we went to the hospital, and then we went back to the Police Station, and then we went — I went and showed the Police Officer the road where Dennis McQueen had took me.

On direct examination the prosecutrix stated that the door on the driver’s side of the pickup was open. She said that the appellant asked her to open the door on the passenger’s side to which she responded, “No.” When he asked her: a second time she opened the door. She stated his tone of voice was “very heavy like.” She was then asked “Did he say that he was going to do anything to you?” The witness responded “No, sir.” She then related that after she got out of the pickup appellant told her to go around on the other side and take her underclothes and shorts off and leave one leg on. She also testified that the baby was talking and moving around in the truck while the incident occurred. On cross-examination she testified that she was scared of appellant and when asked why, answered, “I was just scared of him because he was drinking and that, and I was scared he was going to hurt me.”

On direct examination the prosecutrix stated that she told the appellant that she was afraid she was going to get pregnant. The following questions and answers then occurred:

Q. Who had told you that?

A. My mother.

Q. So what were your exact words? What did you tell him at that time?

A. I told him I didn’t want to get pregnant, and I was scared.

Q. And what did he say?

A. And he said it wouldn’t hurt, and it would only take a little while, and he would not get me pregnant.

Q. And then what happened?

A. Then he put his penis in, and I was crying and telling him that it hurt, and that I wanted to go home, and he wouldn’t let me get up.

Q. Did you know where the baby was at this time?

A. The baby was on the passenger’s side of the truck.

The witness was asked on cross-examination to describe what she meant by force and her answer was as follows: “Well, the tone of his voice and that, for first of all. Okay, second of all, by not letting me get up when I wanted to, when I wanted to stop and just by making me do something that went against my will.”

On redirect examination the prosecutrix was asked what the appellant said to make her take her clothes off and her answer was, “All he said was, take your clothes off,” and I did. She was then asked if she knew what he wanted to do at that time and she replied that when he told her to take her clothes off, “Well, I knew what he had in mind to do.”

The prosecutrix was examined by a doctor shortly after the incident complained of. The doctor testified that the prosecutrix said no force was used and he could not determine if there had been penetration. The only evidence of trauma was a reddening of the vulva which the doctor said could have been caused by manipulation of the genitals by oneself or by another individual, tight fitting clothes, or wearing Kotex.

Appellant testified that he, the prosecu-trix, and his young son went to a store where he purchased a root beer, a coke and two bottles of Miller beer. He stated that they drove back to the house and were gone approximately twenty to twenty-five minutes. He denied that he stopped the truck between the store and the house and denied that he had sex relations with the prosecu-trix. He stated that the prosecutrix wanted to drive the truck but he refused because it was a company truck. He stated that the prosecutrix grabbed “his private, and she was trying to entice me to let her drive the truck.” He stated the prosecutrix got angry because he would not let her drive the truck and did not say another word on the ride back to the house. He said when he arrived at the house he played with his son, drank one of the beers and then left to return to New Orleans.

Appellant was indicted for forcible rape in violation of section 97-3-65(2) Mississippi Code Annotated (Supp.1979). Appellant’s principal argument is that there was no evidence that any force was used, no weapon was exhibited, no physical struggle ensued, and no threats were made by appellant. He also argues there was no evidence that prosecutrix yielded without a reasonable apprehension of great bodily harm being done to her.

In Rush v. State, 301 So.2d 297 (Miss.1974), we stated:

We have held in numerous cases that physical resistance is not required where the female yielded through fear under a reasonable apprehension of great bodily harm. Fields v. State, 293 So.2d 430 (Miss.1974); Johnson v. State, 223 Miss. 56, 76 So.2d 841 (1955). If the female fails to resist the attack of her assailant because she is put in such apprehension and fear, the act of the assailant may be rape under the law. Fields, supra; McGee v. State, 40 So.2d 160 (Miss.1949), cert. denied, 338 U.S. 805, 70 S.Ct. 77, 94 L.Ed. 1369 (1950); Milton v. State, 142 Miss. 364, 107 So. 423 (1926).

In the cases cited, there were verbal threats and the exhibition of a knife or gun. In the instant case, the appellant did not make any verbal threats or utterances of any kind nor did he exhibit a deadly weapon. However, the testimony is undisputed that appellant grabbed the victim by the throat, dragged her into the adjoining room and forced her to the floor placing the weight of his body upon her. The extent of the force .and pres- • sure upon her throat is reflected in the prosecutrix’s testimony that: “I couldn’t breathe and I was gagging and it kinda made me groggy.”

In describing the fear that she experienced at the time, the prosecutrix said:

I couldn’t do anything. I was so scared. It was just like I was frozen. I couldn’t raise my arms or anything. I was just like I was paralyzed. I couldn’t move.

Well, he was — it was like a dead weight on top of me and then all I could think of I didn’t want to get him angry. I was scared he might hurt my baby or me, to make me cooperate, and I just wanted him just to go away and leave us alone. (301 So.2d at 299)

In the case before the Court the testimony for the state establishes that appellant is 28 years of age, he had been drinking beer, he stopped at a secluded spot at night, appellant stated he was lost, removed the ignition key thus immobilizing the truck, made his desire known to the prosecutrix who had locked the door on her side of the car, and in a “heavy” tone of voice, commanded her to remove her clothing and lie down on the seat after which appellant had sexual intercourse with her.

The evidence for the state not only fails to satisfy the mind of the guilt of the accused but suggests grave doubt of it. No bruises or marks of violence were evident except reddening of the vulva. No weapon was exhibited and the evidence falls far short of showing that the prosecutrix submitted because of a reasonable apprehension that she would suffer injury if she refused. Appellant did not threaten to injure prosecutrix, did not forcibly remove her from the truck, did not remove her clothes, and did not forcibly make her lie down in the truck. The evidence presented on behalf of the state is legally insufficient to support a conviction for the crime of forcible rape.

The United States Supreme Court in Burks v. State, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978) held that cases reversed by a reviewing court because the evidence is legally insufficient to support conviction bars a retrial under the double jeopardy clause of the Fifth Amendment to the United States Constitution. In Tibbs v. Florida, - U.S. -, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) the Court held that a reversal by an appellate court on the ground that the verdict of the jury was against the weight of the evidence did not preclude a retrial of the defendant. Tibbs clearly distinguished between cases reversed because the evidence was legally insufficient to support a conviction and cases reversed because the verdict was against the weight of the evidence. The Court stated:

Burks v. United States and Greene v. Massey carved a narrow exception from the understanding that a defendant who successfully appeals a conviction is subject to retrial. In those cases, we held that the Double Jeopardy Clause precludes retrial “once the reviewing court has found the evidence legally insufficient” to support conviction. Burks, supra, [437 U.S.] at 18 [98 S.Ct. at 2150]; Greene, supra [437 U.S.] at 24 [98 S.Ct. at 2154]. This standard, we explained, “means that the government’s case was so lacking that it should not have even been submitted to the jury.” Burks, supra [437 U.S.] at 16 [98 S.Ct. at 2149] (emphasis original). A conviction will survive review, we suggested, whenever “the evidence and inferences therefrom most favorable to the prosecution would warrant the jury’s finding the defendant guilty beyond a reasonable doubt.” Ibid. See also Greene, supra [437 U.S.] at 25 [98 S.Ct. at 2154]. In sum, we noted that the rule barring retrial would be “confined to cases where the prosecution’s failure is clear.” Burks, supra [437 U.S.] at 17 [98 S.Ct. at 2150].

As we suggested last Term, these policies do not have the same force when a judge disagrees with a jury’s resolution of conflicting evicence and concludes that a guilty verdict is against the weight of the evidence. See Hudson v. Louisiana, 450 U.S. 40, 44-45 n. 5 [101 S.Ct. 970, 972-973 n. 5, 67 L.Ed.2d 30] (1981). A reversal on this ground, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Instead, the appellate court sits as a “thirteenth juror” and disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion no more signifies acquittal than does a disagreement among the jurors themselves. A deadlocked jury, we consistently have recognized, does not result in an acquittal barring retrial under the Double Jeopardy Clause. Similarly, an appellate court’s disagreement with the jurors’ weighing of the evidence does not require the special deference accorded verdicts of acquittal.

A reversal based on the weight of the evidence, moreover, can occur only after the State both has presented sufficient evidence to support conviction and has persuaded the jury to convict. The reversal simply affords the defendant a second opportunity to seek a favorable judgment. An appellate court’s decision to give the defendant his second chance does not create “an unacceptably high risk that the Government, with its superior resources, [will] wear down [the] defendant” and obtain conviction solely through its persistence. United States v. DiFran-cesco, supra, [449 U.S. 117] at 130 [101 S.Ct. 426 at 433, 66 L.Ed.2d 328].

While an appellate ruling based on the weight of the evidence thus fails to implicate the policies supporting Burks and Greene, it does involve the usual principles permitting retrial after a defendant’s successful appeal. Just as the Double Jeopardy Clause does not require society to pay the high price of freeing every defendant whose first trial was tainted by prosecutorial error, it should not exact the price of immunity for every defendant who persuades an appellate panel to overturn an error-free conviction and give him a second chance at acquittal. Giving the defendant this second opportunity, when the evidence is sufficient to support the first verdict, hardly amounts to “governmental oppression- of the sort against which the Double Jeopardy Clause was intended to protect.” United States v. Scott, 437 U.S. 82, 91 [98 S.Ct. 2187, 2193, 57 L.Ed.2d 65] (1978).

Petitioner Tibbs resists these arguments on the grounds that a distinction between the weight and the sufficiency of the evidence is unworkable and that such a distinction will undermine the Burks rule by encouraging appellate judges to base reversals on the weight, rather than the sufficiency, of the evidence. We find these arguments unpersuasive for two reasons. First, trial and appellate judges commonly distinguish between the weight and the sufficiency of the evidence. We have no reason to believe that today’s decision will erode the demonstrated ability of judges to distinguish legally insufficient evidence from evidence that rationally supports a verdict.

Second, our decision in Jackson v. Virginia, 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560] (1979), places some restraints on the power of appellate courts to mask reversals based on legally insufficient evidence as reversals grounded on the weight of the evidence. We held in Jackson that the Due Process Clause forbids any conviction based on evidence insufficient to persuade a rational factfinder of guilt beyond a reasonable doubt. The Due Process Clause, in other words, sets a lower limit on an appellate court’s definition of evidentiary sufficiency. This limit, together with our belief that state appellate judges faithfully honor their obligations to enforce applicable state and federal laws, persuades us that today’s ruling will not undermind Burks. In sum, we conclude that the Double Jeopardy Clause does not prevent an appellate court from granting a convicted defendant an opportunity to seek acquittal through a new trial. (- U.S. at -, 102 S.Ct. at 2217-19, 20; 72 L.Ed.2d at 660-63)

We base the reversal on the fact that the evidence in this case was legally insufficient to support a conviction and not on the weight of the evidence. Therefore, we reverse and discharge appellant under the authority of Burks and Greene, supra.

REVERSED AND APPELLANT DISCHARGED.

PATTERSON, C.J., WALKER, P.J., and BOWLING and PRATHER, JJ., concur.

DAN M. LEE, J., concurs in part and dissents in part.

BROOM, HAWKINS and ROY NOBLE LEE, JJ., dissent.