McCarty v. State

• Decision Date: 28 June 2022
• Docket Number: 2021-KA-00418-COA
• Citation: 342 So.3d 520
• Parties: Douglas MCCARTY, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

342 So.3d 520

Douglas MCCARTY, Appellant

v.STATE of Mississippi, Appellee

NO. 2021-KA-00418-COA

Court of Appeals of Mississippi.

June 28, 2022

Rehearing Denied September 27, 2022

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, Jackson

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALEXANDRA RODU ROSENBLATT

BEFORE BARNES, C.J., WESTBROOKS AND EMFINGER, JJ.

BARNES, C.J., FOR THE COURT:

¶1. A Lawrence County Circuit Court jury found Douglas McCarty guilty of aggravated assault (choking), kidnapping, and rape. He was acquitted of the remaining count of being a felon in possession of a firearm. The trial court sentenced him as a habitual offender to life imprisonment for each conviction, with the sentences to be served consecutively in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole.

¶2. McCarty, represented by the Office of Indigent Appeals, contends on appeal that he is entitled to a new trial (1) under the doctrine of retroactive misjoinder and (2) due to the admission of improper character evidence. McCarty has also filed a pro se supplemental brief, raising various other issues. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶3. McCarty was arrested and charged with brutally assaulting, kidnapping, and raping his estranged wife "Penny"¹ on July 12, 2018. Just days prior, the couple had signed an agreed complaint for divorce, and the Lawrence County Justice Court had entered an ex parte domestic protection order against McCarty. On December 27, 2018, a Lawrence County grand jury indicted McCarty on the following counts:

Count I: Aggravated Assault (choking); Count II: Aggravated Assault (extreme indifference); Count III: Possession of a Weapon by a Convicted Felon (Browning twelve-gauge shotgun); Count IV: Possession of a Weapon by a Convicted Felon (Winchester rifle); Count V: Armed Robbery; Count VI: Kidnapping; and Count VII: Rape.

At the State's request, the trial court later entered an order of nolle prosequi as to Counts II and V of the indictment.

¶4. On August 6, 2020, the trial court held a motion hearing on the defense's request for Penny's medical records. The defense argued that the medical records were necessary to establish whether Penny had a propensity for "blacking out" in an effort to explain her bruises from the day in question. The circuit judge ordered that the medical records "be produced to the [c]ourt for in camera review to determine the relevancy to the defense."

¶5. On August 26, 2020, the parties agreed to stipulate that McCarty had a "prior conviction" for purposes of the two counts of possession of a weapon by a felon. The defense also filed a motion in limine to exclude Penny's treating physician, Dr. Ramiro Montalvo, "from opining that [Penny] suffers from posttraumatic stress disorder." The trial court denied the defendant's motion in limine on December 21, 2020. Subsequently, the court granted the State's motion to amend the indictment to charge the defendant as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015).

¶6. Another hearing was held to address the defendant's motion to sever the counts. The trial court severed Count IV (possession of a weapon by a felon) from the indictment, as that particular gun was never displayed or used in the commission of the other charged crimes. The court further held in its order, "The Court shall also issue a limiting instruction to the jury as to the purpose of admission of [d]efendant's prior felony conviction in relation to Count III."

¶7. At the same hearing, the State moved "to admit evidence of prior incidents of domestic violence ... to show the defendant's intent, motive, and a common scheme" under Mississippi Rule of Evidence 404(b). The State specifically referenced three domestic incidents between the couple that had occurred in the weeks leading up to July 12, 2018. The trial court concluded that the evidence of these three incidents, as well as the ex parte protective order, would be admissible for this purpose. The court also noted that a jury instruction would be given to "caution that the above-listed evidence [would not be] admitted to prove the [d]efendant's character or that he acted in accordance with his character by allegedly committing the crimes for which he stands trial."²

¶8. The jury trial was held March 9-12, 2021. Defense counsel reasserted the motion to sever the remaining felon-in-possession-of-a-weapon count, which the trial judge denied. Lawrence County Sheriff Ryan Everett testified that Jeff Farnham, Penny's landlord, contacted his office on July 12, 2018, concerned for Penny's safety. Farnham had seen McCarty at the house that day and knew he was not supposed to be there. Sheriff Everett noted that the sheriff's office previously had been dispatched to the address for domestic disturbances. Law enforcement went to the home after Farnham's call, but no one was there. Meanwhile, Penny's daughter had also talked with law enforcement and had expressed concern for her mother's safety. Recalling the prior domestic incidents, Sheriff Everett believed exigent circumstances existed, so he got Penny's cellular carrier to "do a phone tower ping" in an effort to locate her. He also issued a BOLO ("be on the lookout") notice to neighboring jurisdictions but was not successful in locating either McCarty or Penny.

¶9. At approximately midnight, Penny was located at her residence, and Farnham drove her to the sheriff's office. Sheriff Everett testified that Penny "was in total hysterics ... scared to death, frightened." He was "haunt[ed]" by her appearance, noting that "she had taken a beating like I had never seen a man take a beating." Penny was sent to the hospital for a sexual-assault examination. Shortly thereafter, McCarty was taken into custody. During McCarty's interview, McCarty and former Under Sheriff Brian Rayburn got into a heated verbal exchange. Sheriff Everett said that Rayburn, who had been present during Penny's interview, told McCarty, "[I]f you weren't in handcuffs[,] I'd whip your f**king a** my god**** self." McCarty jumped out of his chair, and Rayburn shoved him, causing McCarty's head to hit the drywall. Sheriff Everett "totally condemn[ed]" the altercation. McCarty was transported to the hospital for examination and for a suspect-sexual-assault kit to be used.

¶10. Sheriff Everett testified as to the evidence obtained during the investigation, including a "loaded and locked" shotgun with "two live rounds chambered in the barrel" recovered from the trunk of Penny's car. Due to Penny's emotional state at that time, she was allowed to return two weeks later to give a supplemental written statement regarding the incident. Sheriff Everett noted that Penny still had "visible marks" and "was still an emotional train wreck." On cross-examination, Sheriff Everett said that Penny told him McCarty had tied up her ankles with a vacuum cleaner cord and then went outside to get a shotgun from her car.³

¶11. Deputy Anthony Sims testified that he was dispatched on June 15, 2018, in response to a 911 call Penny had made, in which she claimed that McCarty had doused himself with gasoline and had threatened to set himself on fire. Deputy Sims observed that McCarty had "blood-shot eyes" and noticed that a "strong odor of intoxication [was] coming from his breath of alcohol." He said Penny appeared "upset and fearful." Deputy Sims acknowledged that when he interviewed Penny on June 15, she did not say that McCarty had threatened her. Based on information from Penny's statement, Deputy Sims "looked in the trunk of her car to see did she have a weapon." On July 12, 2018, Deputy Sims received the BOLO call for Penny and McCarty in a vehicle.

¶12. Margaret Walker testified that she had worked with her boss Penny for approximately twenty-seven years. Walker had never known Penny to faint or pass out while at work. Walker and Penny were working at a local nursing home on July 10, 2018, when McCarty came into the building. Penny told him that he could not be there and "led him out the door." Walker followed them out because Penny appeared to be "scared" of McCarty. After McCarty would not leave, another co-worker called law enforcement.

¶13. Farnham testified that he began renting the home to Penny in 2016. Farnham was aware that Penny had a restraining order against her husband and that McCarty was not supposed to be at the house. On the afternoon of the incident, Farnham saw Penny turning into her driveway, so he "messaged her about cutting that grass ... on Sunday," but she did not respond, which he found unusual. Farnham sent two more messages with no response from Penny.

¶14. "[B]othered" by her failure to answer his texts, Farnham drove to the house. He observed through an open window blind that McCarty had Penny "pressed to the wall with his hand in her face." When Farnham knocked, McCarty "became alarmed[,] ... jumped back[,] ... opened the door[, and] ... said, ‘There isn't anything going on. We ain't fighting.’ " McCarty walked outside, and Farnham told him that he wanted to cut the grass on Sunday. Farnham further testified:

He came out the door, went around me, behind me, and went in her car. And as he's looking through the car for, I do not know what, I looked back into the open door. She turns to me and says, call the law, call the law. She's mouthing, call the law, call the law.

And when she turned, this eye was black, this cheek was black.

Farnham drove home and called the sheriff's office. He reported that Penny and McCarty were at the rental property and "that it appeared to me that she had been beaten." He also sent a Facebook message to Penny's daughter. A few hours later, Farnham went back to the house to see if her vehicle was there. A few minutes later, Penny drove up. She was "disheveled," and her "right eye was black and bruised," so Farnham took her to the sheriff's office....