Burgess v. State

• Decision Date: 19 November 2015
• Docket Number: No. 2013–KA–01516–SCT.,2013–KA–01516–SCT.
• Citation: 178 So.3d 1266
• Parties: Casey Mark BURGESS a/k/a Casey Burgess a/k/a Casey M. Burgess v. STATE of Mississippi.
• Court: Mississippi Supreme Court

178 So.3d 1266

Casey Mark BURGESS a/k/a Casey Burgess a/k/a Casey M. Burgess

v.STATE of Mississippi.

No. 2013–KA–01516–SCT.

Supreme Court of Mississippi.

Nov. 19, 2015.

Donald W. Boykin, Jackson, attorney for appellant.

Office of the Attorney General by Melanie Dotson Thomas, attorney for appellee.

Before RANDOLPH, P.J., KING and COLEMAN, JJ.

RANDOLPH, Presiding Justice, for the Court:

¶ 1. Following a jury trial in the Circuit Court of Rankin County, Casey Mark Burgess was convicted of three counts of sexual battery against his wife, S.B. He was sentenced to thirty years on each count, to run concurrently. Following the denial of his alternative motions for judgement notwithstanding the verdict or for a new trial, Burgess appealed. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. The day after celebrating the couple's twelfth wedding anniversary, Burgess left S.B. and the couple's three daughters to go on a week-long drug and alcohol induced "binge." They neither saw Burgess nor had any meaningful communication with him during that time.

¶ 3. Around 7:00 a.m. on August 28, 2011, S.B. was sleeping in her children's bedroom when Burgess entered the daughters' bedroom, wanting to talk to his wife. S.B. asked Burgess about his filthy appearance. He replied that he had not showered in a week, had been living in his truck, and had been bathing himself with baby wipes. S.B. suggested Burgess go to bed. He refused. Not wanting to wake the children, S.B. left that bedroom and attempted to walk into the living room to talk to Burgess. However, Burgess stopped S.B. and ordered her to the master bedroom. As S.B. began to sit on the bed, Burgess shut the door behind them, grabbed S.B. by the neck, and threw her onto the bed. He told her to shut up and do what he said "or else there's going to be three motherless children on the other side of this house."

¶ 4. Burgess ordered her to undress. When she refused, he pulled her clothes off, stating, "[W]hen you find out what I've done this whole week you'll never forgive me so I'm going to have my way with you one last time." Burgess then forced S.B. to have sex with him. "[H]e vaginally raped me ... as hard as he could ... and I was crying and I kept just turning my head so I didn't have to look at him, and I was begging him to stop[.]"

¶ 5. But Burgess did not stop. He told S.B. that she was "not getting out of here until [he was] able to ejaculate." Burgess then dragged S.B. from the top of the bed to the end of the bed and raped her again vaginally without ejaculating. Burgess then dragged S.B. into the bathroom, applied Vaseline to his penis and to her anus, threw her against a closet wall, and raped her anally. S.B. begged Burgess to stop, but he just kept telling her to shut up and do what she was told. When this did not work for Burgess, he forced S.B. to perform oral sex on him until he ejaculated. According to S.B.'s testimony, "the whole time during all of this, he was either ... holding me down or ... gripping my neck and I couldn't breathe.... I thought he was about to snap my neck."

¶ 6. The ordeal lasted about three and one half hours, followed by S.B. calling Burgess's parents and her mother. When they arrived, she and the three children left with S.B.'s mother. The assault occurred on a Sunday. S.B. did not call the police that day. On Monday, S.B. returned to work at an elementary school attended by two of her daughters. Later that same day, S.B. saw Burgess's truck pull up at the school. Worried that he was coming after her or the children, she alerted and gave a statement to the school's resource officer, who then contacted an investigator with the Sheriff's Department, who began the investigation.

¶ 7. On Tuesday, S.B. obtained a restraining order against Burgess and retained an attorney for the purposes of filing for divorce. On Wednesday morning, Burgess texted S.B. the following message: "Will you at least text me something? I'm guess [sic] I'm waiting on either charges and me picked up or nasty divorce papers. You took me off Facebook...."¹

¶ 8. Later that day, S.B. pressed charges against Burgess for sexual battery. S.B. gave a statement to the investigator, recounting the events of the attack. On Thursday, a process server went to Burgess's residence to serve him with divorce papers. Burgess asked the server, "Well, what do [the papers] say that I did?" The server read the papers to Burgess:

I read this verbatim and it says that "On August 28th, the Respondent physically assaulted the Petitioner by throwing her down on the bed, demanded her to take her clothes off, told her if she made any sound there would be three motherless children, holding her down and raping her repeatedly, took her into a closet while begging to be let go. He threw her into the wall. He said he was getting—he was going to have his way with her one last time. Then he forced her to have oral sex with him. The Defendant held the Plaintiff down by keeping his arm on her neck at all times during the incident."

When the server finished reading the papers, Burgess turned to him and said, "Well, I did all that."

¶ 9. Later that day, a sheriff's deputy went to serve a warrant on Burgess for the assault against S.B. When the deputy arrived, no one was home. However, as the deputy walked back to his car, he saw a white truck matching the description of the one owned by Burgess. According to the deputy,

[A]s I looked up, the vehicle I guess noticed me at the same time and pulled in the driveway, backed out, and then took a right-hand turn. As I run to my car to try to make contact with him, by the time I got to that road he was out of sight. I notified dispatch that I was in pursuit of what appeared to be Casey Burgess in that white pickup.

Approximately three to five minutes after spotting Burgess's truck leaving the driveway, the deputy responded to a 911 call reporting a one-vehicle accident near Burgess's home. Upon arrival, the deputy saw Burgess's truck had hit several trees. The driver's door was open and the truck unoccupied. An eyewitness told the deputy that the driver, a male, "took off running in the woods." Walking down an embankment, the deputy found a trail of blood. He followed it and called Burgess's name. The deputy apprehended Burgess, in need of medical treatment, approximately ninety yards into the woods.

¶ 10. After receiving medical treatment, Burgess met with the investigator regarding the rape and sexual-battery charges. Burgess waived his Miranda² rights and voluntarily gave a videotaped confession in which he admitted sexually battering his wife. In his own words, he had been on a "drinking and drug binge" that "messed [him] up." Burgess admitted he forced himself on S.B., forced her to have vaginal, anal, and oral sex with him against her will. Burgess confessed to telling S.B. that if she did not comply with his sexual demands their daughters would be "motherless."

¶ 11. Burgess also admitted fleeing from police to avoid arrest. According to Burgess, on the morning of August 31, he received a visit from the process server, and was alerted to the fact S.B. had filed for divorce, to include allegations of sexual battery. After the server left, Burgess left his house for a brief period. When he returned, he reached the end of his street and "I saw three deputy cars at my house. So—but I was thinking that they were there because I had—like [the server] said, ticked my wife off and she had made divorce like make it from divorce papers and stuff to charges. That is what I honestly believed." When the investigator asked, "Then why were you leaving?," Burgess replied:

So I just—instead of turning down my street and continuing on, I turned down my street and just make a loop, like looped around. And then I saw one of the deputies backing out. No blue lights or anything. But I figured, well, if they didn't see me, then I can go, get away, like get out of here and then I'd come back. So I left out and when I got to Hollybush, I was just going too fast and I hit like a dip, and the back of my truck came up and started rolling, I guess.

¶ 12. Burgess was indicted for three counts of sexual battery—vaginal, anal, and oral—of his wife, S.B., pursuant to Mississippi Code Section 97–3–95(1)(a). He was tried and found guilty on all counts. He was sentenced to thirty years on each count, to run concurrently. Burgess's motion for judgment notwithstanding the verdict (JNOV) or alternatively for a new trial was denied. It is from the Order of Sentence and Order denying Burgess's motions for JNOV and new trial that Burgess appeals.

ISSUES

¶ 13. Burgess raises the following eight issues on appeal:

I. Whether the trial judge erred by granting certain jury instructions because they constructively amended all counts of the indictment by adding the necessary element of "force. "

II. Whether the trial judge erred by improperly limiting Burgess's voir dire.

III. Whether the trial judge erred by denying Burgess's challenges of certain jurors for cause.

IV. Whether the trial judge erred by excluding evidence of S.B.'s prior sexual acts with Burgess.

V. Whether the trial judge erred by denying Burgess's motions for directed verdict, peremptory instructions, JNOV, and new trial.

VI. Whether the trial judge erred by giving a flight instruction.

VII. Whether the trial judge erred by admitting letters into evidence at sentencing.

VIII. Whether the trial judge erred by admitting a redacted text message into evidence.

ANALYSIS

I. Whether the trial judge erred by granting certain jury instructions because they constructively amended all counts of the indictment by adding the necessary element of "force. "

¶ 14. Jury instructions are reviewed under an abuse-of-discretion standard. Watkins v. State, 101 So.3d 628, 633 (Miss.2012). "When read together, if the jury instructions state the law of the case and create no injustice, then no reversible error will be found." Id. While jury instructions should track the language...