Michael v. State

• Court: Mississippi Court of Appeals
• Writing for the Court: Barnes, J.
• Citation: Michael v. State, 918 So.2d 798 (Miss. App. 2005)
• Decision Date: 07 June 2005
• Docket Number: No. 2003-KA-02647-COA.,2003-KA-02647-COA.
• Parties: Marty R. MICHAEL, Appellant, v. STATE of Mississippi, Appellee.

918 So.2d 798

Marty R. MICHAEL, Appellant, v. STATE of Mississippi, Appellee.

No. 2003-KA-02647-COA.

Court of Appeals of Mississippi.

June 7, 2005.

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William Wayne Housley, Tupelo, attorney for appellant.

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

Before KING, C.J., IRVING and BARNES, JJ.

BARNES, J., for the Court.

¶ 1. Marty R. Michael (Michael) was tried and convicted in the Circuit Court of Lee County, Mississippi, of rape. He was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections, with five years suspended and five years' post-release supervision and fined $2,000. From his conviction, Michael appeals to this Court raising the following issues which we quote verbatim:

1. Whether Michael was deprived of due process and a right to a fair trial where court did not respond to jurors' question;

2. Whether the trial court erred in overruling the appellant's motion to dismiss the charges or in the alternative a directed verdict;

3. Whether the trial court erred in denying the appellant's motion for directed verdict at close of appellant's case;

4. Whether the evidence was sufficient as a matter of law;

5. Whether the ineffective assistance of counsel was in violation of the sixth and fourteenth amendments of the United States Constitution;

6. The court erred in allowing the state to make a prejudicial reference to prior bad acts in violation of M.R.E. Rule 404; and,

7. The cumulative effect of aforementioned errors greatly prejudiced Michael and rendered fair trial impossible.

Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. N.T. claimed that she was raped by Michael on April 11, 2002. He was indicted by the Lee County grand jury and subsequently entered a plea of not guilty. His appointed counsel, Kelly Mims, represented Michael at trial on November 12-14, 2003.

¶ 3. Ms. Kathy Jackson was the first to testify. Ms. Jackson related that she was a friend of N.T.'s, and that N.T. had come to her on April 18, 2002 "very upset" and told her she had been raped by Michael. Ms. Jackson testified that she saw bruises on N.T.'s face. Ms. Jackson affirmed that the statement she had given the police of N.T. being raped by Michael was consistent with what N.T. told her, and that N.T.'s account of the rape had not changed over time.

¶ 4. Next, Officer Jeff Penny, a park ranger with the Natchez Trace Parkway, testified that during his April 18, 2002 interview of N.T. she advised him that she had been assaulted and raped. Her statement, which had been reduced to writing by Officer Penny, reported that Michael "struck me on the face and pulled/ripped off my sweat pants and panties and raped me." Officer Penny testified that bruises were visible on N.T.'s neck and face, and he identified the photographs he had taken of N.T.'s facial bruises, which photographs were admitted into evidence. Officer Penny found the bruises to be consistent with N.T.'s statement of being choked and squeezed around her neck.

¶ 5. N.T. testified on her own behalf that Michael raped her. N.T. informed the jury that, although she had previously lived with Michael for about four months, she had broken off their relationship because of his "abuse." N.T. testified that, despite his history of physical abuse, she voluntarily went with Michael in his car on the evening of April 11. The two argued over N.T.'s renewed relationship with the father of her youngest son and her refusal to have sexual relations with Michael "one last time." N.T. testified that while she steadfastly refused to have intercourse with Michael, he attacked her, tore off her sweat pants and panties, and choked her, applying pressure to her head and neck. Although she fought back, N.T. was subdued and eventually raped. N.T. testified that she begged Michael to stop, and warned him she would report his actions to the police. N.T. explained that she did not immediately inform her parents of the rape out of fear and embarrassment. N.T. also testified that Michael subsequently called her on the telephone and threatened to harm her should she inform law enforcement of his actions. N.T. was asked on cross-examination if Michael had struck her before.¹ She responded that Michael did so when he was "smoking, hitting the foil." On redirect, N.T. explained that "hitting the foil" meant smoking crystal methamphetamine.

¶ 6. Michael testified on his own behalf and admitted to having sex with N.T., but believed it was consensual. He admitted to consuming beer, and using marijuana and Xanax prior to having sexual intercourse with N.T. on the night of April 11. Michael admitted that he had a drug problem, but he claimed that N.T. also used drugs and that her claim to the contrary was "about as big a lie as could be told." Michael admitted to "backhand[ing N.T.] in the lip," drawing blood, on the night of April 11, but contended that his hitting her occurred subsequent to their engaging in consensual intercourse. Michael also admitted that he threatened N.T. with violence subsequent to the night of April 11, 2001.

¶ 7. The jury found Michael guilty of rape but was unable to fix the penalty. The trial court sentenced Michael to twenty-five years in the custody of the Mississippi Department of Corrections, with five years suspended and five years post-release supervision. Michael retained new counsel, Roy Farrell, who filed a motion for a JNOV on December 4, 2003. The motion was denied the same day, and Michael filed his notice of appeal to this Court.

I. WAS MICHAEL DEPRIVED OF DUE PROCESS AND A RIGHT TO A FAIR TRIAL WHEN THE TRIAL COURT DID NOT RESPOND TO THE JURORS QUESTION?

¶ 8. During jury deliberations, the jury submitted the following note to the trial judge: "If the jury finds the defendant guilty and does not impose a life sentence, what is most likely the sentence that the judge will impose." The judge advised the jury that he could not respond to their inquiry. Michael's trial counsel made no objection to the judge's decision. On appeal, his new counsel contends, without citation of authority, that the court's failure to respond to the jurors' question of "most likely sentence" deprived him of a due process right to a fair trial. As a general rule, this Court will not consider assignments of error which are not supported. Jones v. State, 481 So.2d 798, 804 (Miss.1985) (quoting Harmon v. State, 453 So.2d 710, 712 (Miss.1984)). Further, Michael's trial counsel waived any objection to the trial court's decision by failing to voice objection during the trial. When not objected to during the trial, an error is considered waived. Smith v. State, 530 So.2d 155, 161-62 (Miss.1988); Longmire v. State, 749 So.2d 366, 368(¶ 5) (Miss.Ct.App.1999). Lastly:

The guideline to follow when a jury has a question about a case on which it is deliberating is enunciated in Girton v. State, 446 So.2d 570, 572 (Miss.1984). "Our first recommendation is that the circuit judge determine whether it is necessary to give any further instruction. Unless it is necessary to give another instruction for clarity or to cover an omission, it is necessary that no further instruction be given." Id.

Payton v. State, 897 So.2d 921, 955 (¶ 138) (Miss.2003). After carefully considering the question asked of the trial judge, we are of the opinion that the court did not err in declining to respond. In fact, we do not see how the court could have otherwise responded to the jury's inquiry as to the "most likely sentence" the court would impose. Neither Michael's trial nor appellate counsel has identified how he contends that the trial court should have responded to the jury's request for an advisory opinion. This issue is not only procedurally barred but also without merit.

II. DID THE TRIAL COURT ERR IN OVERRULING THE APPELLANT'S MOTION TO DISMISS THE CHARGES OR IN THE ALTERNATIVE A DIRECTED VERDICT?

III. DID THE TRIAL COURT ERR IN DENYING THE APPELLANT'S MOTION FOR DIRECTED VERDICT AT CLOSE OF APPELLANT'S CASE?

¶ 9. The standard of review for denial of a motion for directed verdict requires that the trial court consider all the evidence in the light most favorable to the State. If the facts and reasonable inferences will support a verdict of guilty, then the directed verdict must be denied. Coulter v. State, 506 So.2d 282, 284 (Miss.1987). In considering a motion to dismiss, the judge should consider "the evidence fairly, as distinguished from in the light most favorable to the plaintiff," and the court should dismiss the case if it would find for the defendant. In re Adoption of D.N.T., 843 So.2d 690, 710-11(¶ 50) (Miss. 2003) (quoting Century 21 Deep S. Props., Ltd. v. Corson, 612 So.2d 359, 369 (Miss.1992)). N.T. testified in graphic detail as to the events which lead up to and occurred during her sexual intercourse with Michael on the night of April 11, 2002; although she begged him to stop, Michael attacked N., tore off her clothes, and choked her into submission before having sexual intercourse with her. Michael admitted to drinking beer, smoking marijuana and taking Xanax prior to the sexual intercourse and "backhand[ing N.T.] in the lip" on the night of April 11. Kathy Jackson and Officer Penny testified as to the existence of bruises on N.T. a week later. Officer Penny testified that the bruising on N.T.'s neck and face was consistent with N.T.'s allegations. These facts and reasonable inferences could easily support a guilty verdict against Michael. Thus, we are of the opinion that the lower court was correct in denying the defendant's motions for directed verdict and to dismiss the charge of rape.

IV. WAS THE EVIDENCE SUFFICIENT AS A MATTER OF LAW?

¶ 10. Regarding the sufficiency of the evidence, Michael contends that reasonable doubt existed and a jury could not have convicted him of the rape absent mistake. Michael claims that no reasonable juror...