269 So. 3d 388
Miss. Ct. App.2018Background
- Dewitt, a former high-school girls’ basketball coach, was convicted of two counts of touching a child for lustful purposes based on Foster’s testimony of repeated sexual touching when Foster was 16 (Dec 2009–July 2010).
- Foster disclosed the conduct to her mother in January 2013; the mother (Monique) arranged a recorded confrontation with Dewitt using police recording equipment while officers observed from a distance.
- The recording (made before any Miranda advisement) was played at trial over Dewitt’s motion in limine to exclude it; Dewitt was later arrested and given Miranda warnings at the station.
- After deliberations began, the clerk discovered a juror (Simmons) had lived in Hancock County only two months and was not a registered voter there; neither side had objected during empanelment and Simmons had passed voir dire (the court record lacks the verbatim voir-dire Q&A).
- Dewitt moved for mistrial based on juror incompetency, moved to exclude the recorded confrontation as impermissible custodial interrogation/agent conduct, and sought lesser-included-offense instructions for teacher–pupil intercourse; the trial court denied relief on each ground.
- The Court of Appeals affirmed: no abuse of discretion regarding juror service, the recorded confrontation was admissible (private-party recording with police passive involvement), and the teacher–pupil statute was not a lesser-included offense of the charged touching offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Competency of juror who had lived in county only two months / failure to disclose | Simmons was disqualified under Miss. Code §13-5-1; withholding this would have supported a strike for cause and requires new trial | No timely objection during empanelment; voir dire was conducted and both sides accepted juror; no evidence Simmons intentionally misled or was biased | Denial of mistrial affirmed — no abuse of discretion; defendant failed to show juror fault or prejudice and waived later challenge by not objecting during empanelment |
| Admissibility of recorded confrontation made by victim’s mother using police equipment | Recording should be excluded: Monique acted as government agent and Dewitt’s statements (pre‑accusation) required Miranda/were the product of government interrogation | Monique was an independently motivated private actor; police merely provided equipment and observed passively; Dewitt was not in custody or at accusatory stage, so Miranda/6th Amendment did not apply | Recording admissible — private-party recording; no sufficient state action or custody to trigger Miranda or Fourth/Sixth Amendment protections |
| Request for lesser-included instruction (teacher–pupil intercourse) to be given under charged touching counts | Sex between teacher and pupil is a lesser-included offense of touching a child for lustful purposes and jury should have been permitted that option | The teacher–pupil offense requires sexual intercourse (penetration) and is not necessarily included in the touching offense; no evidence of penetration and defendant’s theory was total fabrication | Instruction refused properly — teacher–pupil intercourse is not a lesser-included offense of the charged statute and, in any event, evidence didn’t support it |
Key Cases Cited
- Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602 (1989) (private conduct constitutes state action only if a sufficiently close nexus to government exists)
- U.S. v. Rogers, 906 F.2d 189 (5th Cir. 1990) (voluntariness of statements judged under totality of circumstances)
- Roberts v. Louisiana Downs, Inc., 742 F.2d 221 (5th Cir. 1984) (to treat private actor as government agent there must be close connection/sufficient nexus)
- United States v. Walther, 652 F.2d 788 (9th Cir. 1981) (passive law-enforcement presence insufficient to convert private search into state action)
- Friley v. State, 879 So. 2d 1031 (Miss. 2004) (test for lesser-included offense: greater must include all elements of lesser)
- Bell v. State, 725 So. 2d 836 (Miss. 1998) (trial judge’s voir dire defects do not automatically require reversal absent prejudice)