240 So. 3d 449
Miss. Ct. App.2017Background
- In August 2013, Z.H., then six years old, disclosed that her uncle, Kevin Powell, sexually abused her after she spent the night at his home; disclosures were reported to police and recorded in forensic interviews.
- Powell voluntarily went to the police, waived rights, and provided an interview with an account inconsistent with the victim’s statements; both Powell’s and Z.H.’s recorded interviews were played to the jury.
- The MCAC forensic interviewer, Erin Gowen, testified as an expert about Z.H.’s disclosure and that the disclosure was consistent with sexual abuse; the trial court qualified Gowen as an expert in forensic interviewing.
- A Warren County grand jury indicted Powell for sexual battery of a child under fourteen; a jury found him guilty and the court sentenced him to twenty years (twelve to serve, eight suspended) plus supervision and fees.
- Post-trial, Powell moved for JNOV or a new trial asserting ineffective assistance of counsel, insufficiency/weight of evidence, and challenging Gowen’s expert qualification; the trial court denied relief and Powell appealed.
- On appeal the Court of Appeals: declined to resolve the ineffective-assistance claim on the merits (record inadequate for direct review), upheld the court’s qualification of Gowen as an expert, and held Powell’s JNOV/new-trial motion was untimely and thus not reviewable on the merits; judgment affirmed.
Issues
| Issue | Plaintiff's Argument (Powell) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Ineffective assistance of counsel | Trial counsel mischaracterized and prevented Powell from calling fact witnesses; deprived Powell of his right to present witnesses | Record does not show constitutional ineffectiveness on its face; remedy is to raise in post-conviction proceedings if record insufficient | Court declined to address merits on direct appeal; dismissed without prejudice to PCR (record inadequate) |
| Qualification of forensic-interview expert | Gowen lacked sufficient qualifications/training and could not reliably distinguish interviewing protocols, so her testimony was unreliable | Gowen had a BSW, state licensure, three years’ forensic-interview experience (300+ interviews), protocol training, supervisory review; court properly exercised discretion | Court held trial judge did not abuse discretion in qualifying Gowen as an expert; testimony admissible |
| Sufficiency/weight of evidence (JNOV / new trial) | Conviction unsupported or against the weight of evidence; trial counsel failures impacted verdict | Motion was untimely under Rule 10.05 and applicable precedent; court lacked authority to extend filing deadline | Court found motion untimely (filed Dec 17, beyond ten days and after term expired) and declined to reach merits; denial affirmed |
| Admission of out-of-court statement re: Marcus Dillard | (Implied) statement was hearsay/improper character impeachment | Statement admitted not for truth but to show it was made (impeachment/context) | Court allowed limited use of the out-of-court statement as instructed to jury |
Key Cases Cited
- Wilcher v. State, 863 So. 2d 776 (Miss. 2003) (direct-appeal ineffective-assistance claims are rarely resolved on the record; require either affirmatively shown ineffectiveness or stipulation that record is adequate)
- Corrothers v. State, 148 So. 3d 278 (Miss. 2014) (Rule 702 requires expert testimony to be relevant and reliable)
- Bush v. State, 895 So. 2d 836 (Miss. 2005) (distinguishes motions for JNOV — legal sufficiency — from new-trial motions — weight of the evidence)
- Well v. State, 73 So. 3d 1203 (Miss. Ct. App. 2011) (a criminal JNOV filed after the ten-day new-trial period and after term is untimely)
- McGraw v. State, 688 So. 2d 764 (Miss. 1997) (timeliness requirements for post-trial motions and limits on extending filing periods)
- Ross v. State, 16 So. 3d 47 (Miss. Ct. App. 2009) (circuit court may not extend time limits for filing motions for JNOV or new trial)
- Pickett v. State, 143 So. 3d 596 (Miss. Ct. App. 2013) (admission of expert testimony is reviewed for abuse of discretion)