Ben v. State, 2009–CA–01495–COA.

Decision Date01 November 2011
Docket NumberNo. 2009–CA–01495–COA.,2009–CA–01495–COA.
Citation96 So.3d 9
PartiesCecil R. BEN, Appellant v. STATE of Mississippi, Appellee.
CourtMississippi Court of Appeals

OPINION TEXT STARTS HERE

Julie Ann Epps, Canton, attorney for appellant.

Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appellee.

Before LEE, C.J., ISHEE and ROBERTS, JJ.

LEE, C.J., for the court:

PROCEDURAL HISTORY

¶ 1. A jury in the Leake County Circuit Court convicted Cecil R. Ben of forcible rape. Ben was sentenced to life in the custody of the Mississippi Department of Corrections. Ben's post-trial motions were denied. Ben subsequently filed an appeal, asserting several issues that we have reordered as follows: (1) he was denied his right to a speedy trial; (2) he was not presented with a full jury panel before exercising his peremptory challenges; (3) the trial court erroneously admitted several hearsay statements; (4) the trial court erroneously admitted the testimony of Otis Mingo; (5) the evidence was insufficient to support the verdict, and the verdict is against the overwhelming weight of the evidence; and (6) his sentence was disproportionate to his crime.

FACTS

¶ 2. On October 3, 2007, at approximately 4:30 a.m., Ben, a bus driver with the Choctaw Transit Authority, picked up a passenger, Monica.1 Monica was eighteen years old at the time and a student at East Central Community College. Monica lived on Highway 35 outside of Carthage, Mississippi. Monica testified that she was the first passenger on the bus that morning. At one point during the ride, Ben pulled over at the intersection of Highways 35 and 25 in Carthage. Monica testified that Ben then came back to her seat and tried to kiss her. Monica resisted his advances by pushing, kicking, and yelling; but Ben overpowered her. Monica testified that Ben was able to pin her down, while he pulled her pants and underwear down. Monica stated that Ben then inserted his penis into her vagina. Monica stated that after the rape, Ben cleaned himself with paper towels, and then he threw these paper towels out of the bus.

¶ 3. Monica did not notify anyone of the rape until October, 7, 2007, when she told her best friend, Maurice Hines. Monica testified that she waited until then to notify anyone because she was ashamed and embarrassed. Monica identified Ben in the courtroom as the person who had raped her.

¶ 4. Hines testified that he spoke with Monica the night of October 7th. Hines testified that he could tell that Monica was upset and urged her to confide in him. Hines testified that Monica then told him that she had been raped by Ben.

¶ 5. Monica then informed her mother of the situation, and her mother called the Choctaw Police Department. Officer Timothy Thomas responded to Monica's home, where he took Monica's statement and received the clothes Monica had worn at the time of the rape. Officer Thomas then followed Monica to the location of the rape, where Officer Thomas was able to locate the paper towels used by Ben. Monica had informed Officer Thomas that the paper towels were “brown or pink-looking.” Officer Thomas then determined that the rape had occurred in Carthage, so the Carthage Police Department was notified and given the evidence collected thus far. On cross-examination, Officer Thomas testified that in his report, he noted that Monica told him that she had waited to report the crime because she felt ashamed, dirty, and partly responsible.

¶ 6. Officer Van Perry of the Carthage Police Department testified that he took possession of the four paper towels and the victim's clothing. Officer Perry then handed the evidence to Officer Kevin Cross. Officer Perry also told Monica that she needed to undergo a rape test.

¶ 7. Sharon Hockett, a registered nurse with the Choctaw Health Department, was called in to perform an exam on Monica. Hockett testified that Monica appeared upset and frightened, but a rape kit was not performed because the rape had occurred over seventy-two hours prior to the exam.

¶ 8. Bill Jones, an analyst with the Mississippi State Crime Laboratory, testified that samples of a paper towel containing seminal fluid and blood samples from Ben and Monica were sent to a private forensic laboratory, Orchid Cellmark, in Texas for further DNA testing. Casey Dupont, the senior forensic scientist at Orchid, performed DNA testing on all three samples. Dupont testified that the stain on the paper towel contained a mixture consistent with the DNA from the blood samples from both Ben and Monica.

DISCUSSION

I. SPEEDY TRIAL

¶ 9. Ben argues that his constitutional right to a speedy trial was violated under the factors set out by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Since there is no set amount of time within which a defendant must be brought to trial, the United States Supreme Court has developed a balancing test to determine whether a defendant's constitutional right to a speedy trial has been violated. See Barker, 407 U.S. at 530, 92 S.Ct. 2182. The four factors to be considered together and balanced are: (1) the length of delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) prejudice to the defendant. Id. at 530–32, 92 S.Ct. 2182;see Stark v. State, 911 So.2d 447, 450 (¶ 7) (Miss.2005).

A. Length of the Delay

¶ 10. Under Barker, [t]he length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530, 92 S.Ct. 2182. In Mississippi, any delay from the date of arrest, indictment, or information until trial exceeding eight months is presumptively prejudicial. Stark, 911 So.2d at 450 (¶ 7);Smith v. State, 550 So.2d 406, 408 (Miss.1989).

¶ 11. Ben was arrested on October 19, 2007, and he was incarcerated until November 5, 2007, when he posted bail. Ben was not indicted until November 8, 2008, and trial began on May 11, 2009. Since the delay exceeds eight months, it is presumptively prejudicial, and the cause of the delay must be analyzed under the remaining Barker factors.

B. Reason for the Delay

¶ 12. “Once a delay is found to be presumptively prejudicial, the burden of proof shifts to the State to show cause for the delay.” Stark, 911 So.2d at 450 (¶ 11). The appellate court must determine whether the delay should be charged to the State or the defendant. Id. Since the burden is on the State to provide a defendant with a speedy trial, this factor is weighed against the State unless it can show either that the delay was caused by the defendant or that the delay was for a good cause. Id.;Wiley v. State, 582 So.2d 1008, 1012 (Miss.1991).

¶ 13. The majority of the delay was caused by the length of time it took to perform DNA testing on the evidence. The report from the crime lab, which included the DNA tests from Orchid, were not confirmed until mid-July 2008, one month after the Leake County grand jury's June meeting. The case was not presented to the grand jury until its next scheduled meeting in November.

¶ 14. However, the trial judge signed an agreed order of continuance on January 27, 2009, which states that Ben's trial counsel filed a motion for continuance. The trial judge granted this motion and continued the matter until May 11, 2009, the day trial was set to begin. “Well-taken” motions for continuance may justify a delay in a criminal case. Flora v. State, 925 So.2d 797, 815 (¶ 63) (Miss.2006).

¶ 15. As it is apparent that there was reason for delay from both Ben and the State, we find this factor to be neutral.

C. Assertion of the Right to a Speedy Trial

¶ 16. Ben filed a motion to assert his right to a speedy trial and a motion to dismiss for a violation of his right to a speedy trial on January 5, 2009. Shortly thereafter, the agreed order of continuance was signed. During the hearing on this motion, Ben admitted that the fact that a significant amount of time had elapsed would not weigh in his favor. We agree. In Adams v. State, 583 So.2d 165, 169–70 (Miss.1991), the Mississippi Supreme Court held that a demand for dismissal coupled with a demand for instant trial was insufficient to weigh the third Barker prong in defendant's favor where the motion came after the bulk of the delay had elapsed. This factors weighs against Ben.

D. Prejudice to the Defendant

¶ 17. There are three main considerations in determining whether the accused has been prejudiced by a lengthy delay: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired.” Jefferson v. State, 818 So.2d 1099, 1108 (¶ 21) (Miss.2002) (internal quotations omitted). “Generally, proof of prejudice entails the loss of evidence, death of witnesses, or staleness of an investigation.” Sharp v. State, 786 So.2d 372, 381 (¶ 19) (Miss.2001).

¶ 18. Ben contends that due to the lengthy delay, he was unable to work and suffered anxiety. Ben also argues that the delay affected the memories of potential witnesses. Ben contends that several of the riders who got on the bus shortly after the rape could have testified about Monica's behavior. Ben's trial counsel stated that several of these witnesses had been interviewed and could not remember anything. While Ben argues he was prejudiced by the fading memory of potential witnesses, the fact remains that Ben was able to contact these witnesses in order to prepare his defense. Just because a potential witness's recollection fails to support Ben's theory does not indicate prejudice to his defense.

¶ 19. Although a delay did exist, we cannot find that Ben's constitutional right to a speedy trial was violated. This issue is without merit.

II. JURY

¶ 20. In his next issues, Ben contends that the trial judge required him to make peremptory challenges even though the State had not presented a full p...

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2 cases
  • Ben v. State
    • United States
    • United States State Supreme Court of Mississippi
    • August 23, 2012
    ...that the stain on the paper towel contained a mixture consistent with the DNA from the blood samples from both Ben and Monica.Ben v. State, 96 So.3d 9, 12–13 (Miss.Ct.App.2011). ¶ 3. Otis Mingo, a dispatcher/driver for Choctaw Transit, also testified about a sexually inappropriate remark th......
  • Ben v. Denmark
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • December 15, 2015
    ...the stain on the paper towel contained a mixture consistent with the DNA from the blood samples from both Ben and Monica.Ben v. State, 96 So. 3d 9, 12-13 (Miss. Ct. App. 2011). Ben appealed his conviction and sentence on the grounds that 1) his constitutional right to a speedy trial was vio......

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