King v. State

• Decision Date: 18 September 2003
• Docket Number: No. 2001-KA-00786-SCT.,2001-KA-00786-SCT.
• Citation: 857 So.2d 702
• Parties: David Earl KING and Nathan Paul King a/k/a Dooley v. STATE of Mississippi.
• Court: Mississippi Supreme Court

857 So.2d 702

David Earl KING and Nathan Paul King a/k/a Dooley v. STATE of Mississippi.

No. 2001-KA-00786-SCT.

Supreme Court of Mississippi.

September 18, 2003.

Rehearing Denied November 6, 2003.

Gary L. Honea, Magnolia, John M. Colette, Jackson, and Wayne Dowdy, Attorneys for Appellants.

Office of the Attorney General by Charles W. Maris, Jackson, Attorney for Appellee.

EN BANC.

EASLEY, Justice, for the Court:

¶ 1. David Earl King (King) and his adopted son, Nathan Paul King (Dooley), were convicted in the Circuit Court of Walthall County, Mississippi, Honorable Mike Smith, Circuit Judge, presiding, of the crimes of conspiracy to commit sexual battery, sexual battery, and contributing to the delinquency of a minor. King was sentenced to serve consecutive, respective terms of five years, thirty years, and one year in the custody of the Department of Corrections (DOC), and to pay respective fines of $5,000.00, $10,000.00, and $1,000. Dooley was sentenced to serve consecutive, respective terms of two and one-half years, fifteen years, and one year in the custody of the Department of Corrections, and to pay respective fines of $5,000.00, $10,000, and $1,000. Aggrieved by this judgment and sentence, King appeals, presenting the following issues, edited for clarity, for this Court's resolution:

I. Whether the trial court erred in denying bail to King.

II. Whether the trial court erred with regard to discovery.

III. Whether the trial court erred in overruling the King's motion for severance.

IV. Whether pretrial and trial publicity denied the King a fair trial.

V. Whether the trial court erred in regard to the State's disclosure of the deal made with co-indictee Gary Bates.

(a) Whether the trial court erred in refusing King's request for a cautionary instruction regarding Gary Bates's guilty plea.

VI. Whether the trial court erred in admitting certain pornographic evidence.

VII. Whether M.R.E. 404(b) was violated.

VIII. Whether the trial court erred in ordering that the venire list be sealed or by refusing King's request for individualized voir dire.

IX. Whether the trial court erred by overruling, in part, King's motion to suppress.

X. Whether the defendant's constitutional protection against double jeopardy was violated.

XI. Whether the trial court erred in submitting certain instructions to the jury.

(a) Aiding and abetting instructions

(b) Instruction 23

(c) Instruction 25.1

XII. Whether the jury's verdict is against the overwhelming weight of the evidence, contrary to the law of this State, and the result of bias and prejudice.

XIII. Whether the trial court erred in sentencing King.

XIV. Whether cumulative error requires reversal.

Dooley also appeals, presenting the following edited issues:

I. Whether the trial court erred by admitting rebuttal testimony of the State's rebuttal witness, James Roger Danforth, III, in violation of MRE 404(b).

II. Whether the trial court erred in failing to instruct the jury regarding MRE 404(b) evidence.

III. Whether the trial court erred by allowing the jail nurse, a State's witness, to testify regarding an alleged relationship between the defendants, Nathan Paul King and David Earl King, in violation of MRE 404(b).

IV. Whether the trial court erred in sealing the jury panel list in this action from Dooley.

V. Whether the trial court erred in granting the State's jury instruction No. 21 because the instruction misstated the law of aiding and abetting.

FACTS AND PROCEDURAL HISTORY

¶ 2. King is the founder and patriarch of the Valley of the Kings, an independent, non-denominational "holiness" church in rural Walthall County. Dooley is his adopted son. A.B.¹, a minor, and his family, were members of King's congregation. The church was located on 58 acres that also included the King residence and out-buildings where A.B.'s family lived for a period of time.

¶ 3. In the late evening of March 1, 2001, King and Dooley were arrested by Walthall County law enforcement officers (LEO) at their homes inside the Valley of the Kings complex on a variety of sexual assault charges arising from their alleged homosexual misconduct with A.B. A third co-defendant, Gary Bates (Bates), a vagrant, was arrested sometime later. Upon searching King's house, and particularly King's bedroom, officers found much homosexual pornographic material, as well as sexual lotions and devices, all as described by A.B.

¶ 4. An initial preliminary hearing was held on March 5, 2001, before the Honorable Marion McKenzie, Justice Court Judge. Bond was denied, and King filed for a petition for a writ of habeas corpus. A hearing was held before the Honorable Mike Smith, Circuit Court Judge, on March 6, 2001, in Walthall County. Judge Smith also denied King's requested bond. King then filed an Emergency Motion for Bail to this Court, which was denied by Justice Easley on May 18, 2001.

¶ 5. King, Dooley, and Bates were indicted by the Walthall County Grand Jury in a multi-count indictment. King and Dooley were charged with conspiracy to commit sexual battery, sexual battery, and contributing to the delinquency of a minor. Bates pled guilty and testified for the State in exchange for a lesser sentence.

¶ 6. King filed a series of pretrial motions, including one for a change of venue which was granted. The trial began on August 27, 2001, in Franklin County, and continued for three days. The evidence produced at trial established that King, Dooley, and Bates had, on numerous occasions, fondled and engaged in oral and anal sex with A.B. At the conclusion of the trial, the jury found King guilty on all three counts. Sentencing commenced immediately, and King received a total term of thirty-six years in the custody of the DOC and a total fine of $16,000, together with all costs of court. Dooley was also found guilty and sentenced. Bates, in exchange for his cooperation with the State, pled guilty to a sole count of conspiracy and received a probated sentence.

¶ 7. King timely filed a motion for JNOV, or in the alternative, for a new trial, on September 6, 2001. Dooley filed his on September 7, 2001. King alleged eighteen separate areas of error, as did Dooley. After a hearing, their motions were denied. The trial court issued an amended sentencing order on October 2, 2001. King and Dooley timely perfected their appeals to this Court.

ANALYSIS

ISSUES RAISED BY KING

I. WHETHER THE TRIAL COURT ERRED IN DENYING BAIL TO KING.

¶ 8. In his first issue, King complains of the trial court's refusal to release him on pretrial bail.² This refusal, he contends, "was just the first step" in his being denied "either a fair prosecution or a fair trial." The State disputes that King was denied a fair trial, then argues that the refusal of bail is of no moment to King's appeal. This Court agrees. See Jones v. State, 798 So.2d 1241, 1255 (Miss.2001)

; King v. State, 580 So.2d 1182, 1185-86 (Miss.1991) ("[W]hether the judge improperly incarcerated James has nothing to do with the merits of this case and, as a consequence, reversal is not a possible remedy."); Benson v. State, 551 So.2d 188, 195 (Miss.1989) ("The trial court's denial of bail is not grounds for reversal of the judgment rendered against the defendant.").

¶ 9. This assignment is without merit.

II. WHETHER THE TRIAL COURT ERRED WITH REGARD TO DISCOVERY.

¶ 10. Here, King contends that the State "failed to establish complete disclosure" and that the "prejudice to [him] was immense as even at trial new material was being used" and that "[t]oo many critical items just `slipped through the cracks.'" He complains that the "trial court's order on this issue was a mere excuse" and "[t]he trial court's decision ... after trial was mere justification."

¶ 11. Beyond citing a few general principles related to discovery requirements, the foregoing is the substance of King's argument in this assignment of error. He does not cite to any specific evidence the State failed to disclose nor does he pinpoint any specific ruling of the trial judge denying him disclosure of requested evidence in the State's possession. Indeed, in ruling on this issue as raised by King in his motion for a new trial, the trial judge stated as follows:

2. To the Court's knowledge, the State produced all documents, etc. requested by the defendants. There has been no complaint to the Court of any specific document, etc. that was not produced.

3. The Court is unaware of anything that the State did not disclose. There has been no complaint to the Court of any specific matter that was not disclosed.

¶ 12. The trial court has considerable discretion in matters pertaining to discovery, and its exercise of discretion will not be set aside in the absence of an abuse of that discretion. Gray v. State, 799 So.2d 53, 60 (Miss.2001). Judgments of the trial courts come to this Court clothed with a presumption of correctness, and it is the burden of the appellant—King—to overcome that presumption. Branch v. State, 347 So.2d 957, 958 (Miss.1977). "Our law is clear that an appellant must present to us a record sufficient to show the occurrence of the error he asserts and also that the matter was properly presented to the trial court and timely preserved." Acker v. State, 797 So.2d 966, 972 (Miss.2001) (quoting Lambert v. State, 574 So.2d 573, 577 (Miss.1990)). See also Pulphus v. State, 782 So.2d 1220, 1224 (Miss.2001)

("Issues cannot be decided based on assertions from the briefs alone. The issues must be supported and proved by the record.") (citing Robinson v. State, 662 So.2d 1100, 1104 (Miss.1995)).

¶ 13. Mere assertions that a discovery violation occurred, without proof, or any meaningful argument whatsoever as to what particular evidence was not disclosed, is insufficient to warrant reversal. King has failed to meet his burden of proof; no abuse of discretion has been demonstrated. ¶ 14. Next, King argues that he was not given exculpatory evidence. He argues that it was discovered...