Mingo v. State
| Citation | 944 So.2d 18 |
| Decision Date | 07 December 2006 |
| Docket Number | No. 2005-KA-01238-SCT.,2005-KA-01238-SCT. |
| Parties | Julian MINGO v. STATE of Mississippi. |
| Court | United States State Supreme Court of Mississippi |
Charles E. Miller, Mccomb, Attorney for Appellant.
Office of the Attorney General, by John R. Henry, Jackson, Attorney for Appellee.
Before WALLER, P.J., DIAZ and CARLSON, JJ.
¶ 1. A Lowndes County jury convicted Julian Mingo of three counts of fondling a fifteen-year-old boy. Mingo was sentenced to three ten-year terms of imprisonment, to be served consecutively, followed by five years of post-release supervision. On appeal, Mingo challenges various rulings by the trial judge, the sufficiency of the evidence supporting his conviction, and the length of his sentence.1 Finding each of Mingo's claims to be without merit, we affirm the judgment of conviction and the sentence imposed.
¶ 2. Julian Mingo was employed as the band and choral director at a private school in Lowndes County, Mississippi. The victim, who was fourteen years old at the time the relevant incidents began, was a student at the school with an interest in the fine arts. The victim's parents hired Mingo as a private voice coach in the summer of 2004, believing that private instruction would help their son get admitted to a school for the performing arts.
¶ 3. The lessons were conducted in the school's band hall, often in a small private practice room. At the victim's first lesson in early June, Mingo informed the victim that he might use some "weird techniques" to train the victim. At the second lesson on June 16, 2004, Mingo led the victim to a small private practice room and reminded him of his "weird techniques." Mingo then turned off the lights, stood behind the victim, and began fondling him. He told the victim not to tell anyone. The victim continued to take lessons from Mingo over the summer and into the fall. Over the course of the lessons, Mingo repeatedly fondled the victim.
¶ 4. The victim finally told a friend about Mingo's actions on October 19, 2004. The victim's friend told another classmate of the victim on October 20. This classmate asked the victim about the allegations and took him to the school counselor to have the victim explain what had happened. The counselor called the school headmaster who, in turn, called the chief of police. The chief of police interviewed the victim, gave him a small tape recorder to put in his pocket, and asked him to confront Mingo in his office. The victim went to Mingo's office at the beginning of an afternoon class and asked him why he had fondled the victim. Mingo apologized repeatedly and said that he would stop. After the victim left Mingo's office and went back to the police chief, Mingo left his office and gave a speech to his students about the importance of forgiveness.
¶ 5. Later that afternoon, the parent of another student, who had heard about the allegations against Mingo, went to the school and confronted him. Mingo admitted touching the student, but said there had been a misunderstanding. At the end of the school day, the school's headmaster asked Mingo to leave the school until the matter was resolved.
¶ 6. The victim gave a more extensive statement to the police on October 20th. Based on his statement, the Columbus police sought to interview Mingo. They asked the headmaster to contact Mingo and ask him to come to the police station for questioning. Mingo went to the police station voluntarily to give a statement in the afternoon on October 20th. Although he was not placed in custody at that time, he was advised of his Miranda rights and signed a waiver indicating that he understood those rights. In his statement to police, Mingo admitted touching the victim. Mingo consented to having his home searched, and, in the course of their search, the police found an eight millimeter tape of a young male performing a sexually explicit act.
¶ 7. After being convicted of three counts of fondling and being sentenced to three ten-year terms, to run consecutively, Mingo appeals.
(1) Legality of Arrest
¶ 8. Mingo claims that his arrest was without probable cause since it was based solely on the testimony of the victim. Determinations of reasonable suspicion and probable cause are reviewed de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (Miss.1999). However, we will conduct a de novo review of the trial judge's determination "based on historical facts reviewed under the substantial evidence and clearly erroneous standards." Dies v. State, 926 So.2d 910, 917 (Miss. 2006) (citing Floyd, 749 So.2d at 113).
¶ 9. Mingo significantly misstates the record in implying that he was arrested after the victim gave a statement to the police. The record reflects that after the police took the victim's statement, Mingo was asked to come to the police station to answer questions concerning the accusations of the victim. He voluntarily agreed to give a statement and was not arrested until after he had given the statement. The statements of the victim and Mingo's own corroboration were more than sufficient to establish probable cause.
¶ 10. Even if Mingo had been arrested in response to the victim's statement, Mingo cites no authority for the principle that a witness' testimony is insufficient to establish probable cause. The State persuasively argues that since the uncorroborated testimony of a victim can provide the basis for a finding of guilt beyond a reasonable doubt, see Collier v. State, 711 So.2d 458, 462 (Miss.1998), it must by definition suffice for the lesser finding of probable cause.
¶ 11. This claim is without merit.
(2) Admissibility of Statement
¶ 12. Mingo argues that his statement to police before his arrest is inadmissible because he was not properly given his Miranda warnings. The threshold question in a Miranda rights analysis is whether the defendant was in custody and being interrogated when the statement in question was made. Drake v State, 800 So.2d 508, 513 (Miss.2001). A person is "in custody" if a reasonable person would feel that they were going to jail and not just being temporarily detained. Godbold v. State, 731 So.2d 1184, 1187 (Miss.1999). Whether a reasonable person would feel that she was "in custody" depends on the totality of the circumstances, and may include factors such as: (a) the place of interrogation; (b) the time of interrogation; (c) the people present; (d) the amount of force or physical restraint used by the officers; (e) the length and form of the questions; (f) whether the defendant comes to the authorities voluntarily; and (g) what the defendant is told about the situation. Hunt v. State, 687 So.2d 1154, 1160 (Miss.1996). If a person is determined not to be in custody and is not being interrogated, the Miranda protections do not attach. Voluntary statements made by a defendant do not trigger the requirements of Miranda. Drake, 800 So.2d at 513
¶ 13. As noted above, Mingo voluntarily went to the police station, was told about the victim's accusations, and agreed to give a statement to police. He was not placed under arrest before questioning, and the officers emphasized that he was free to end his questioning at any time. Given these circumstances, Mingo was not "in custody" and, therefore, was not entitled to the Miranda protections. Nevertheless, out of caution the officers did read Mingo his Miranda warnings, and Mingo signed a waiver indicating that he fully understood those rights. During a hearing on pretrial motions, Mingo conceded that he had been given his Miranda warnings and had fully understood his rights. This claim is without merit.
(3) Rulings on Issuance of Two Subpoenas
¶ 14. Mingo claims that the trial court erred in denying him access to his personal notes and documents contained in his desk at the academy and to the records of Cole Refrigeration, a company that worked at the academy during the summer in 2004. We review a trial court's rulings on matters of evidence, relevancy and discovery violations for an abuse of discretion. Flora v. State, 925 So.2d 797, 819 (Miss. 2006) (citing Montgomery v. State, 891 So.2d 179, 181 (Miss.2004)).
¶ 15. Regardless of Mingo's claims to the contrary, the record indicates that the trial judge was willing to issue a limited subpoena duces tecum for any personal writings of Mingo held by the school, but denied Mingo access to the victim's school record. The court issued the limited subpoena, but it does not appear that the school withheld any of Mingo's personal writings. We do not review allegations of error that are unsupported by the record. See, e.g., Ferrell v. River City Roofing, Inc., 912 So.2d 448, 457 (Miss.2005) (); Vinson v. Johnson, 493 So.2d 947, 950 (Miss. 1986) (). There is no indication that the trial court abused its discretion in its ruling.
¶ 16. Mingo claims that Cole Refrigeration's records would show that he was not alone with the victim at the band hall on certain dates referenced in the indictment. The trial judge contacted the president of Cole Refrigeration, who informed him that the company did not work in the band hall. The trial judge therefore denied the subpoena as irrelevant to the case and informed defense counsel that, if he wanted to challenge the ruling, he could subpoena the president of the company to testify. There is nothing in the record indicating that Mingo chose to subpoena Cole's president. The trial judge did not abuse his discretion in denying the subpoena. See Johnson v. Fargo, 604 So.2d 306, 309 (Miss.1992) (...
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