Hickson v. State, 92-CT-00976-SCT
| Citation | 707 So.2d 536 |
| Decision Date | 15 December 1997 |
| Docket Number | No. 92-CT-00976-SCT,92-CT-00976-SCT |
| Parties | Brian Clayton HICKSON v. STATE of Mississippi. |
| Court | United States State Supreme Court of Mississippi |
J. Boyce Holleman, Tim C. Holleman, Gulfport, for Appellant.
Michael C. Moore, Attorney General, Jolene M. Lowry, Special Asst. Atty. Gen., Jackson, for Appellee.
En Banc.
On Petition for Writ of Certiorari
BANKS, Justice, for the Court:
¶1 This matter is before the Court on petition for certiorari from the Mississippi Court of Appeals. This Court granted petitioner's writ of certiorari to determine whether pre-trial media publicity warranted a change of venue, whether the jury improperly considered extraneous information during deliberations, and whether rebuttal testimony was impermissibly admitted into evidence. 1 Because we find that venue should have been changed, evidenced in part by the comment made during jury deliberations concerning other charges against the petitioner, we reverse and remand.
¶2 On September 04, 1990, Tina Wigington, the secretary of the Indian Springs Baptist Church located near Laurel, Mississippi, was in her office when a man came in and asked for assistance in locating a cemetery plot. Tina explained that the cemetery was not owned by the church, but she gave him directions to the house of the man who managed the cemetery. As the man left the church, Tina glanced out the window as she had not heard nor seen a car drive up. Finding no car, she assumed that the man parked at the cemetery and walked to the church after he could not find the cemetery plot. Shortly after Tina resumed her work, she looked up to find the man standing before her again. He asked her to repeat the directions to the cemetery manager's home. As she started to answer, the man pulled out a gun and held it to Tina's head. He told her to do as he instructed her. He then took her into the pastor's office and pushed her down on her knees. Tina offered the man her jewelry and begged him not to kill her as she had a daughter. The man told her that as long as she did as he instructed, he would let her live. He pulled down his clothing and ordered her to perform fellatio. Tina refused. The man then pulled down Tina's clothes and raped her anally. As he was leaving, he threatened to kill her and do to her daughter what he had just done to her if she told anyone about the assault. Tina promised that she would tell no one.
¶3 As soon as the man left, Tina called 911. She was subsequently taken to the hospital where a rape kit was completed and then to the police department where she provided a statement and a description of the rapist, from which a composite was created. A few weeks later, Tina drove to Hattiesburg and met with a police officer who used Tina's description of the man to draw a more becoming sketch of her assailant.
¶4 During the course of the investigation, police arrested a local resident who had previously been arrested for public indecency. The man was released following a comparison of his blood, saliva, and hair samples to the evidence collected from the rape kit and the scene of the crime, along with Tina's conclusion that the suspect was not the man who raped her. Then on October 26, 1991, approximately fourteen months after the offense, Tina, her daughter, her sister, and her sister's infant baby went to the Arts and Crafts Festival in Ellisville. Tina left her daughter and sister to purchase a ring for her daughter at one of the booths. As she walked back toward her family, Tina saw the petitioner, Brian Clayton Hickson. According to testimony from Tina and her sister, Tina reacted as if she had seen a ghost. 2 Tina's sister asked her what was wrong, but Tina, not wanting her daughter to know, replied that nothing was wrong. She then asked her sister to take the children and wait for her in the car. Her sister, however, refused to go anywhere unless Tina told her what was going on. Tina finally told her sister that she had just seen the man who raped her. She then pointed Hickson out to her sister and told her sister that she was going to follow him. Her sister decided it would be safer for her to follow Hickson instead. Thus, the sister followed Hickson, who was accompanied by his wife and three children, to their car where she wrote down a description of the car and the license plate number.
¶5 Tina and her sister immediately left the festival and went to the sheriff's department in Ellisville where she reported the identification. After running the vehicle information, it was discovered that the car belonged to Hickson. This information was passed on to the local sheriff's office. When Tina went home, she went to the Laurel Police Department and gave another statement about the identification. She was positive that the man she identified at the fair was the man who raped her on September 04, 1990. Based upon this information, a police officer went to the house of Hickson's mom and asked where Hickson lived. Shortly thereafter, several police officers went to Hickson's home and arrested him.
¶6 Prior to the trial, counsel for Hickson moved for a change of venue. He argued that a fair and impartial trial could not be had in Jones County as there had been a large amount of media publicity concerning the case and Hickson's involvement.
¶7 The following three television news reports were aired shortly after Hickson's arrest:
(1) A Jones County man, Bryan (sic) Clay (sic) Hickson, has been arrested and charged with an alledged (sic) rape at Indian Springs Baptist Church a year ago. Jones County Sheriff Department investigators say Hickson was picked up at his home Saturday ... after he was identified by a woman who alledged (sic) Hickson raped her.
(2) A Jones County woman enjoying an Ellisville fall festival Saturday with her sister spotted a man she says raped her a year ago. Bryan (sic) Clay (sic) Hickson was picked up at his Sandersville home Saturday ... after the woman identified Hickson as the man who allegedly (sic) raped her on her job at Indian Springs Baptist Church ... The case is expected to come up in January's grand jury hearings.
(3) Sheriff Deputies have jailed a man they believe raped a woman at a rural Jones County Church. Bryan (sic) Clay (sic) Hickson was arrested at his home Saturday ... after he was identified by a woman who charged Hickson raped her at Indian Springs Baptist Church over a year ago. Jones County Sheriff Department investigators say the alleged victim spotted Hickson at a fall festival in Ellisville over the weekend.
¶8 In addition, there were several front page newspaper articles written about the case in the local newspaper, the Laurel Leader-Call. On October 29, 1991, the front page headline read, "Man jailed for rape at church." Below the headline was a photograph of Hickson beside the composite that was put together when Tina initially reported the assault. The story recites the events surrounding Tina's identification of Hickson at the Ellisville festival, as well as the fact that Tina picked Hickson out of a photo lineup the afternoon after Hickson was arrested. 3 On October 30, 1991, there was a front page follow-up, "Rape suspect free on bond." On November 22, 1991, the same newspaper printed another story, "Motion filed on bond in Indian Springs Case," which included a reprint of a portion of the State's motion to reinstate bond: " ... and that the defendant threatened to kill (the victim) and her child if she ever reported that the defendant committed the crime as alleged...."
¶9 The December 06, 1991 edition of the local paper included another front page story about the case, "Attorneys agree on Hickson bond," as did the January 25, 1992 edition, "Rape suspect arrested again." In this particular article, it was reported that Hickson had been arrested and charged with committing another, separate sexual battery that occurred on January 28, 1990. The facts of that sexual battery were related in the article, as well as a statement by a member of the Laurel Police Department that Hickson's arrest in the instant case is what led to his arrest for the other sexual battery. There was another article in the paper, "Trial dates set for Circuit Court," which informed the community that Hickson's trial in the instant matter was scheduled to begin on August 17 and that he faced another sexual battery charge which had not yet been scheduled for trial.
¶10 In light of Hickson's affidavit-supported motion for change of venue, the trial court held a hearing. At the hearing, the State presented seven members of the community in support of its position that Hickson could receive a fair and impartial trial in Jones County. All of the State's witnesses admitted that they knew about the incident and that they had watched the television reports and read the newspaper articles concerning the matter. In addition, five of the seven witnesses stated that they had either discussed the matter or listened to or overheard discussions about it. Despite their exposure to the case, however, all of the State's witnesses testified that they could be fair and impartial and that they did not think the community had prejudged Hickson or was biased against him.
¶11 The defense called six witnesses in support of its motion to change venue. Of the six witnesses, two knew Hickson, one was related to him, and one (an investigator) worked for his attorney. Four of the six witnesses had read about or watched the media coverage of the case. All of them testified that they had discussed the matter, and all of them opined that they could not be fair and impartial (except the investigator who was not asked this question) and that the community had prejudged Hickson guilty and was biased against him.
¶12 The trial court reserved his final ruling on the change of venue motion until after voir dire. During voir dire, it was discovered that forty-seven of the eighty-six venire members had either read the...
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