Ben v. State

• Decision Date: 23 August 2012
• Docket Number: No. 2009–CT–01495–SCT.,2009–CT–01495–SCT.
• Citation: 95 So.3d 1236
• Parties: Cecil R. BEN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

95 So.3d 1236

Cecil R. BEN
v.
STATE of Mississippi.

No. 2009–CT–01495–SCT.

Supreme Court of Mississippi.

Aug. 23, 2012.

[95 So.3d 1240]

Julie Ann Epps, Canton, attorney for appellant.

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

EN BANC.

WALLER, Chief Justice, for the Court:

¶ 1. Cecil Ben was convicted of rape and sentenced to life imprisonment by the Circuit Court of Leake County. The Court of Appeals affirmed his conviction and sentence. We now do the same.

FACTS AND PROCEDURAL HISTORY

¶ 2. The Court of Appeals set out the facts and procedural history as follows:

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.

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.

[95 So.3d 1241]

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.

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.

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.

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.

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.

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 that Ben purportedly had made about Monica two days before the alleged rape occurred.

¶ 4. Ben was convicted of forcible rape and sentenced to life imprisonment. He appealed to this Court, and we assigned his appeal to the Court of Appeals. The Court of Appeals affirmed his conviction and sentence. Id. at 16–17. In his petition for writ of certiorari, Ben argues (1) that his constitutional right to a speedy trial was violated; (2) that Otis Mingo's testimony was inadmissible due to a discovery violation by the State; (3) that the admission of Maurice Hines's hearsay testimony was not harmless error; (4) that the admission of Nurse Sharon Hockett's statement concerning Monica's veracity was improper; and (5) that the verdict was contrary to the weight and the sufficiency of the evidence. We address each issue below.

DISCUSSION I. Ben's constitutional right to a speedy trial was not violated.

¶ 5. After analyzing the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Court of Appeals held that Ben's constitutional

[95 So.3d 1242]

right to a speedy trial had not been violated. Id. at 13–15. Ben argues that the Court of Appeals' analysis was flawed. He asserts that much of the delay in bringing him to trial was attributable to the State's “inexcusable delay” in submitting DNA evidence for testing. Further, he contends that the Court of Appeals incorrectly found that he was not prejudiced by the failing memories of some potential witnesses.

¶ 6. The Sixth Amendment to the United States Constitution affords an accused “the right to a speedy and public trial....” U.S. Const. amend. VI. That right is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Klopfer v. N. Carolina, 386 U.S. 213, 222–23, 87 S.Ct. 988, 993–94, 18 L.Ed.2d 1 (1967). Article 3, Section 26 of the Mississippi Constitution of 1890 likewise guarantees criminal defendants the right to “a speedy and public trial....” Miss. Const. art. 3, § 26.

¶ 7. In Barker, the Supreme Court set forth four factors to consider whenever a defendant alleges that his constitutional right to a speedy trial has been violated: (1) the length of delay; (2) the reason for the delay; (3) whether the defendant asserted his right; and (4) prejudice to the defendant. Barker, 407 U.S. at 530, 92 S.Ct. 2182. None of these four factors is “a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.” Barker, 407 U.S. at 533, 92 S.Ct. 2182. All, rather, are related and must be considered alongside other relevant circumstances. McBride, 61 So.3d at 142 (citing Barker, 407 U.S. at 533, 92 S.Ct. 2182). Thus, courts must engage in “a difficult and sensitive balancing process.” McBride, 61 So.3d at 142 (citing Barker, 407 U.S. at 533, 92 S.Ct. 2182).

¶ 8. Where, as here, a trial court issues findings of fact and gives reasons for its decisions with regard to the Barker factors, we will uphold its findings so long as they are based upon substantial, credible evidence. McBride, 61 So.3d at 142 (citing State v. Ferguson, 576 So.2d 1252, 1255 (Miss.1991)).

A. Length of the Delay

¶ 9. “The 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” Barker factors. Barker, 407 U.S. at 530, 92 S.Ct. 2182. In Mississippi, a delay of more than eight months is considered presumptively prejudicial. McBride, 61 So.3d at 142 (citing Stark v. State, 911 So.2d 447, 450 (Miss.2005)).

¶ 10. The Sixth Amendment speedy-trial right attaches at the time of formal indictment or information or arrest—whichever occurs first. McBride, 61 So.3d at 142 (citing United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971)). Ben was arrested on October 19, 2007, and remained incarcerated until November 5, 2007, when he posted bail. His trial began May 11, 2009. This amounted to a delay of more than eighteen months or about 570 days. Because the delay exceeds eight months, a full Barker analysis is warranted.

B. Reason for the Delay

¶ 11. “Once the delay is deemed presumptively prejudicial, ‘the burden shifts to the prosecution to produce evidence justifying the delay and to persuade the trier of fact of the legitimacy of these reasons.’ ” McBride, 61 So.3d at 142 (quoting Ferguson, 576 So.2d at 1254). Different reasons are assigned different weights. Barker, 407 U.S. at 531, 92 S.Ct. 2182. Deliberate attempts to delay the

[95 So.3d 1243]

trial in order to hamper the defense are weighed heavily against the State. Id. On the other hand, “[a] more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Id.

¶ 12. This Court is reluctant to weigh heavily against the State investigative delay caused by an instrumentality of the State, such as the state crime lab. State v. Woodall, 801 So.2d 678, 682–83 (Miss.2001) (citing State v. Magnusen, 646 So.2d 1275, 1281 (Miss.1994) (declining to hold the State responsible for a five-month delay caused by the state crime lab's inaction); Gray v. State, 728 So.2d 36, 48 (Miss.1998) (finding that delay caused by FBI laboratory's preparation of DNA evidence weighed very slightly, if at all, in favor of the defendant)); see also Jenkins v. State, 947 So.2d 270, 277 (Miss.2006) (stating that 520–day delay caused by state crime lab and private company's DNA testing did not weigh heavily against the State) (citations omitted); Manix v. State, 895 So.2d 167, 175–76 (Miss.2005) (finding that an almost two-year delay due, in part, to a backlog facing the state crime lab weighed slightly against the State).

¶ 13. The trial...