Townsend v. StateTownsend v. State
Office of the Attorney General by Charles W. Maris, Jr., attorney for appellee.
Before McRAE, P.J., DIAZ and CARLSON, JJ.
DIAZ, Justice, for the Court.
¶ 1. Robert Lee Townsend (Townsend) was convicted in the Circuit Court of Coahoma County, Honorable Elzy Jonathan Smith, Jr., Circuit Judge, presiding, of the crimes of kidnapping, capital rape, and sexual battery. He was sentenced to serve consecutive terms of imprisonment of thirty years, life, and thirty years. Aggrieved by the decision, he appealed.1
¶ 2. Townsend‘s appellate counsel, Cheryl Ann Webster (Webster), has filed a brief pursuant to Brown v. State, 799 So.2d 870 (Miss.2001), which was in turn based on Turner v. State, 818 So.2d 1186 (Miss. 2001). Webster states as follows:
Appellant‘s court appointed appeal lawyer, Cheryl Ann Webster, has determined that the defendant, Robert Lee Townsend is unlikely to prevail on appeal; further that I have scoured the record thoroughly and asked Mr. Thomas Pearson, who is not appointed to represent Mr. Townsend but who is a member in good standing with the Ms. Bar Association, to do the same. It is my considered opinion after conferring with Mr. Pearson that the error in this trial does not rise to the level of reversible error and therefore the appeal of this case would be frivolous.
Webster then lists the following five errors which might support an appeal:
I. Denial of the Motion for Authority to Employ nonlegal assistance at Public expense. II. The Court admitted illegal testimony by and through Andrew Thompson, Sheriff, over the Defendant‘s objections in violation of the Rules of Evidence.
III. The Court admitted into evidence certain illegal items as exhibits particularly State‘s exhibits 7, 19, 29, 22, and 31 in violation of MRC 901.
IV. The Court admitted into evidence certain illegal testimony concerning State‘s exhibit # 1 and State‘s exhibit #3 in violation of MRC 901.
V. The Court admitted into evidence certain illegal items as exhibits particularly State‘s exhibit # 1 and State‘s exhibit # 3 in violation of MRC 901.2
Webster also refers to a letter to Townsend in which she informs him оf his “right to file a pro se supplemental brief.” As of this date, no filings from Townsend have been received.
¶ 3. Webster concludes that she has complied with “the procedure outlined in Brown v. State, 799 So.2d 870 (Miss.2001), with the exception of having another attorney independently review the record for his considered opinion.”
¶ 4. The State submits that while defense counsel has complied with this Court‘s holding in Turner, the issue on appeal is whether the procedure in Turner meets minimum constitutional requirements.
¶ 5. After having carefully reviewed the entire record in this case, this Court concludes that no reversible error occurred during the trial. Thus, we affirm.
FACTS
¶ 6. On the night of December 10, 1994, the victim, a ten-year old girl, was helping her grandparents at their business in Coahoma County when Townsend came in and made a purchase. He took a liking to the victim and had a conversation with her, during which he told her to come outside in five minutes because he needed to tell her something. Townsend then left. Five minutes later, the victim went outside. Townsend grabbed her and, despite her protests, pulled her into his truck. Townsend then drove to his home in Clarksdale. He took the victim inside and physically assaulted her when she refused to put on some men‘s clothes he gave her. After telling her that hе would feed her to the animals and birds if she resisted Townsend put on a “nasty” movie, forced the victim onto the bed, and removed his clothes. He then sexually assaulted her several different times and ways. Upon being interrupted by someone knocking on the door, Townsend hurriedly got up and turned the blood-stained mattress over. After dressing, he and the victim got back into his truck. Before lеtting her out two blocks from her cousin‘s house, Townsend told the victim, “You‘re my woman now,” and instructed her to fabricate a story to explain her absence.
¶ 7. The victim did not comply with Townsend‘s instructions. She immediately told the whole story to her family and the Sheriff. Though bleeding and hurting, on the way to the hospital, the victim led officers to Townsend‘s house. Her description of the interior and exterior of the house matched perfectly. Specifically, she
¶ 8. Dr. Charles D. Cesare, a gynecologist, treated the victim at the emergency room. He testified at trial that the injuries the victim received were consistent with a child having been penetrated by an adult male organ. The victim had a significant amount of bleeding deep in her vagina. Tests revealed the presence of seminal fluid in the victim‘s vaginal and anal cavities. According to Dr. Cesare, “[s]omething forceably entered and dilated and tore the delicate tissues of the vaginal tube and of the rectum.” There was also bruising to her neck, as well as an injury to the neck “where a sharp object or either a scratch had occurred,” and “[t]he back of her head had a little bit of swelling, where it looks like the hair maybe had been traumatized and swollen, about half a centimeter.” Dr. Cesare performed surgery on the victim to suture her wounds, and the child remained in the hospital for three to four days.
ANALYSIS
I. DENIAL OF THE MOTION FOR AUTHORITY TO EMPLOY NONLEGAL ASSISTANCE AT PUBLIC EXPENSE.
¶ 9. The gist of Townsend‘s motion to this effect is that his attorneys needed assistance in examining the numerous items of physical and documentary evidence and, because they were not experienced with the medical examinations and procedures for identifying rape evidence, they needed assistance in that regard as well. Counsel argued:
In order for the presentation of a proper defense and effective assistance of counsel, Defendant Robert Lee Townsend [should] be authorized to employ at the expense of Coahoma County, Mississippi a private investigator, a serologist, a gynecologist with experience in treating rape victims, and a physician with experience in obtaining rape evidence [and] physical evidence from a male accusеd of rape.
No order of denial is included in the clerk‘s papers or mentioned anywhere in the record as far as this Court can find; however, Townsend received no such assistance.
¶ 10. In Ake v. Oklahoma, 470 U.S. 68 (1985), the Supreme Court, delineated three factors to be utilized in determining whether a defendant is entitled to the assistance of an expert witness to assist in the defense of his case. Richardson v. State, 767 So.2d 195, 199 (¶ 19) (Miss.2000). Those factors are: “1) the private interest that will be affected by the action of the State; 2) the governmental interest that will be affected if the safeguard is to be provided; and 3) the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if thosе safeguards are not provided.” Id.
¶ 11. As the Court recognized in Ake, the private interest at stake is an individual‘s liberty. 470 U.S. at 78. Bearing in mind the State‘s duty to ensure “fair and accurate adjudication of criminal
¶ 12. “The trial court‘s decision on a motion for funding for consultants or investigators for an indigent defendant is reviewed for abuse of discretion.” Grayson v. State, 806 So.2d 241, 254 (Miss.2001) (citing Hansen v. State, 592 So.2d 114, 125 (Miss.1991)). The State does not have a constitutional obligation to provide indigent defendants with the costs of expert assistance upon every demand. Johnson v. State, 476 So.2d 1195, 1202 (Miss.1985).
¶ 13. However, this Court does recognize that expert assistance should be paid for in certain cases and will address the need for support on a case-by-case basis to determine whether a defendant is prejudiced by the denial of expert assistance to the extent that he or she is denied a fair trial. Id. In determining whether a defendant was denied a fair trial because of failure to appoint or allow funds for an expert, some of the factоrs to consider are whether and to what degree the defendant had access to the State‘s experts, whether the defendant had the opportunity to cross-examine those experts, and lack of prejudice or incompetence of the State‘s experts. Fisher v. City of Eupora, 587 So.2d 878, 883 (Miss.1991). This Court has also considered to what extent the State‘s case depends upon the State‘s expert, Tubbs v. State, 402 So.2d 830, 836 (Miss.1981), and the risk of error in resolving the issue for which the expert is requested. Johnson v. State, 529 So.2d 577, 592 (Miss.1988).
¶ 14. The trial court did not abuse its discretion in refusing to grant Townsend‘s motion for assistance. As the above authority makes clear, the State of Mississippi does not summarily grant these requests. They must be necessary to preserve the defendant‘s due process guarantees. In the cаse at bar, an expert would have been of little assistance to Townsend because the evidence against him, irrespective of that testified to by experts, was overwhelming. This evidence included, inter alia, positive identifications of Townsend by his victim, who, immediately following the crime, described his person, his vehicle, his home, and all he had done to her. Her dеscription of Townsend included, inter alia, his race and sex, his height and complection, his clothing (recovered by police from Townsend‘s home), his hairstyle, and an unusual knot on the side of his head (which Townsend does have). Her description of Townsend‘s home included, inter alia, the unusual method of entry used by Townsend.3 She then directed police to the scene of the crime, Townsend‘s home. She testified at trial consistent with all she had previously told police.
¶ 16. Given this evidence, expert assistance in the areas requested by Townsend would have been of little benefit to his defense. The other evidence against him, irrespective of that testified to by experts, was insurmountable. Thus, any error in refusing to provide Townsend expert assistance was harmless beyond a reasonable doubt.
¶ 17. This issue is without merit.
II. WHETHER THE COURT ADMITTED ILLEGAL TESTIMONY BY AND THROUGH ANDREW THOMPSON, SHERIFF, OVER THE DEFENDANT‘S OBJECTIONS IN VIOLATION OF THE RULES OF EVIDENCE.
¶ 18. “Admission of testimony is subject only to an abuse of discretion review.” Tatum v. Barrentine, 797 So.2d 223, 230 (Miss.2001) (citing Thompson Mach. Commerce Corp. v. Wallace, 687 So.2d 149, 152 (Miss.1997)).
¶ 19. The defense objected several times during the direct examination of Sheriff Thompson, in response to the Sheriff‘s recounting of statements made to him by the victim. A bench cоnference ensued. Following it, the district attorney moved on to another subject. This Court finds no reversible error in this exchange.
¶ 20. Later, defense counsel objected to the Sheriff testifying to the significance of finding at the defendant‘s house, inter alia, some wrappers that once contained hamburgers. The Sheriff testified that “the significance of this was that the suspeсt had been to [the grandparents’ business] and ordered two hamburgers.” Defense counsel objected to this testimony, unless
¶ 21. This Court has thoroughly reviewed the entire testimony of Sheriff Thompson and has found no reversible error.
III. WHETHER THE COURT ADMITTED INTO EVIDENCE CERTAIN ILLEGAL ITEMS AS EXHIBITS PARTICULARLY STATE‘S EXHIBITS 7, 19, 29, 22, AND 31 IN VIOLATION OF MRE 901.6
¶ 22. The exhibits submitted by counsel as possibly erroneous are as follows: exhibit 7 (lotion), exhibit 19 (samples extracted from Foster‘s mattress), exhibit 29, exhibit 22 (laundry bag; white towel; striped sheet), and exhibit 31.7
¶ 23.
(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidenсe sufficient to support a finding that the matter in question is what its proponent claims.
¶ 24. “Admission or suppression of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of that discretion.” Sumrall v. Miss. Power Co., 693 So.2d 359, 365 (Miss.1997). “For a case to be reversed on the admission or exclusion of evidence, it must result in prejudice and harm or adversely affect a substantial right of a party.” Terrain Enters., Inc. v. Mockbee, 654 So.2d 1122, 1131 (Miss.1995).
¶ 25. The exhibits mentioned were not erroneously admitted as they were introduced following sufficient foundational testimony by both the Sheriff and the victim. Thus, no abuse of discretion occurred. Moreover, no substantial right of Townsend was adversely affected by the admission of this evidence.
¶ 26. This assignment is without merit.
V. WHETHER THE COURT ADMITTED INTO EVIDENCE CERTAIN ILLEGAL ITEMS AS EXHIBITS PARTICULARLY STATE‘S EXHIBIT #1 AND STATE‘S EXHIBIT #3 IN VIOLATION OF MRE 901.
¶ 27. State‘s exhibit one was the victim‘s sexual assault kit. Exhibit three was the defendant‘s sexual assault kit. These exhibits established that the victim had been raped by someone with the same blood type as the defendant. The defense objected to the introduction of both these exhibits on chain of custody grounds. The defense also objected because when Townsend‘s sexual assault kit was opened at trial, it contained underwear that was not identified as being in the bag at the time the kit was sealed at the hospital.
¶ 28. After hearing arguments on the objections, the trial judge overruled them and admitted both sexual assault kits into evidence, with the exception of the underwear, which he excluded and instructed the jury to disregard.
¶ 29. It is well settled that when the trial judge sustains an objection to testimony and directs the jury to disregard it, prejudicial error does not result. Wetz v. State, 503 So.2d 803, 810 (Miss.1987); May v. State, 460 So.2d 778, 783 (Miss. 1984); Shelby v. State, 402 So.2d 338, 340 (Miss.1981). “Admission or suppression of evidence is within the discretion оf the trial judge and will not be reversed absent an abuse of that discretion.” Sumrall, 693 So.2d at 365.
¶ 30. This Court finds no reversible error in these rulings.
VI. THE STATE SUBMITS THAT WHILE DEFENSE COUNSEL HAS COMPLIED WITH THIS COURT‘S HOLDING IN TURNER V. STATE, THE ISSUE ON APPEAL IS WHETHER THE PROCEDURE IN TURNER MEETS MINIMUM CONSTITUTIONAL REQUIREMENTS.
¶ 31. The Turner v. State, 818 So.2d 1186, 1189 (Miss.2001), requirements are that appellate counsel must:
(1) determine that the defendant is “unlikely to prevail on appeal.” Smith v. Robbins, 528 U.S. 259, 279 (2000);
(2) file a brief indicating “that he scoured the record thoroughly.” Hughes v. Booker, 220 F.3d 346, 351 (5th Cir.2000), and “referring to anything in the record that might arguably support the appeal.” Anders v. California, 386 U.S. 738, 744 (1967), and
(3) advise the client of his right to file a pro se supplеmental brief. People v. Wende, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, 1073 (1979).
After these three steps have been taken, the appellate court must then “make its own independent review of the record.” Id.
¶ 32. The State previously asked this Court to revisit this issue in Evans v. State, 813 So.2d 724 (Miss.2002). This Court in Evans refrained from addressing this issue based on the premise that both briefs submitted declared that the appeal was without merit, and the fact that no pro se brief was filed alleging any other error. Id. at 728. The facts are likewise in the present case. Additionally, in Evans, just
CONCLUSION
¶ 33. After a thorough review of the record, this Court has found nothing to support an appeal. Thus, for the foregoing reasons, we affirm the verdict and sentence below and refrain from extending the Turner requirements.
¶ 34. COUNT I: CONVICTION OF KIDNAPPING AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF CAPITAL RAPE AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT PAROLE, AFFIRMED. COUNT III: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT PAROLE, AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONSECUTIVELY WITH THE SENTENCE IN COUNT I. SENTENCE IN COUNT III SHALL RUN CONSECUTIVELY WITH THE SENTENCE IN COUNT II.
PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, EASLEY, CARLSON AND GRAVES, JJ., CONCUR.