Joshua Demien Magee v. State of Mississippi
2016-KA-01257-COA
| Miss. Ct. App. | Dec 12, 2017Background
- Defendant Joshua Magee, age 33, lived with and was accused of repeatedly sexually abusing his then seven‑year‑old cousin (victim referred to as "Abby").
- Victim disclosed abuse after being found with Magee late at night; she testified at trial and also made hearsay statements admitted under the tender‑years exception.
- Magee was charged and convicted of two counts of sexual battery, including cunnilingus (Count II).
- At trial Magee testified; the State impeached him with his status as a felon (trial court limited details of the prior conviction).
- Magee appealed raising evidentiary challenges (impeachment, tender‑years hearsay), claims of ineffective assistance for not seeking a limiting instruction, and attacks on sufficiency and weight of the evidence.
Issues
| Issue | Plaintiff's Argument (Magee) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Impeachment with prior felony | Trial court erred by allowing State to impeach Magee with prior felony | Impeachment was limited to status as felon; Magee’s counsel waived objection at trial | Waived on appeal because defense counsel expressly accepted impeachment at trial (no preserved objection) |
| Ineffective assistance for not requesting limiting instruction | Counsel was constitutionally ineffective for failing to request a limiting instruction about prior conviction | Decision whether to request instructions is trial strategy; no showing of deficient performance or prejudice | Denied; presumption of reasonable strategy applies, but issue left open for post‑conviction relief (denied without prejudice) |
| Admission of victim’s hearsay under tender‑years exception | Trial court abused discretion in admitting hearsay statements as unreliable | Trial court conducted extensive Peterson/Wright‑factor hearing and found sufficient indicia of reliability | No abuse of discretion; trial court properly considered Wright factors and admitted statements under M.R.E. 803(25) |
| Sufficiency and weight of evidence (including Count II cunnilingus) | Victim’s testimony was inconsistent/insufficient to prove penetration for cunnilingus; verdict against weight of evidence | Victim’s testimony plus admitted hearsay statements and corroborating facts were sufficient; jury resolves credibility | Affirmed: evidence (including hearsay that victim said Magee “sucked” her genitals) was sufficient; verdict not against overwhelming weight of evidence |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
- Withers v. State, 907 So. 2d 342 (adoption of Wright factors for tender‑years reliability)
- Bateman v. State, 125 So. 3d 616 (mouth‑to‑genital contact constitutes cunnilingus/penetration)
- Bush v. State, 895 So. 2d 836 (standard for reviewing sufficiency and weight of the evidence)
- Havard v. State, 928 So. 2d 771 (failure to object waives appellate review)
- Peterson v. State, 518 So. 2d 632 (procedure for Peterson hearing on criminal history impeachment)