Sullivan v. State

• Decision Date: 11 June 2019
• Docket Number: NO. 2018-KA-00221-COA,2018-KA-00221-COA
• Parties: Dreshawn SULLIVAN a/k/a Dreshawn M. Sullivan, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

281 So.3d 1146

Dreshawn SULLIVAN a/k/a Dreshawn M. Sullivan, Appellant

v.STATE of Mississippi, Appellee

NO. 2018-KA-00221-COA

Court of Appeals of Mississippi.

June 11, 2019

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

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KATY T. GERBER, KAYLYN HAVRILLA McCLINTON, JASON L. DAVIS, JACKSON

BEFORE CARLTON, P.J., TINDELL AND McDONALD, JJ.

McDONALD, J., FOR THE COURT:

¶1. Dreshawn Sullivan appeals his Forest County Circuit Court convictions of "breaking and entering" (i.e. burglary), attempted kidnapping, and felony child abuse. Having considered both his and his counsel's arguments, those of the State, and relevant case law, we affirm.

FACTS

¶2. In the early morning hours of March 16, 2016, sixteen-year-old R.L.¹ was brutally assaulted in her home by an unknown male who came in through her bedroom window. Initially, he told her not to talk and demanded that she leave with him. When she refused, he punched her in the face and hit her in the head with a metal object. She fell to the floor, bleeding and unconscious.

¶3. On the evening of the incident, R.L.'s sister, J.L., brother, mother, stepfather and J.L.'s boyfriend, Jonathan Hogen, were in the home. J.L. and Hogen slept in J.L.'s bedroom. J.L. got up in the middle of the night to go to the bathroom and heard her sister moaning. J.L. found R.L. in her bedroom, bloodied and unconscious. J.L. woke her mother and stepfather, who, along with J.L., took R.L. to the hospital. Hogen left the home soon after they did and later testified that he went straight home.

¶4. R.L. was severely injured. She underwent brain surgery

and was in a medically induced coma for three weeks. Her surgeon testified that her skull fracture was so severe that her brain was literally protruding from her skull and exposed to the air. Because of brain swelling, he had to remove a portion of the bone that he later reconstructed. Remarkably, when she awoke, she remembered all of the events and could describe her assailant. After hospitalization in Hattiesburg, she went to Blair E. Batson Hospital in Jackson for a lengthy rehab period.

¶5. For several weeks, the investigation stalled. The rape kit revealed no semen or sperm. Nothing materialized from physical items taken from the room and examined for trace DNA evidence. Then police received a call from R.L.'s friend, Brianna Pruitt, who had obtained information on the case. She told them that her cousin, Alexia Jordan, had heard from Xiara Thompson that Dreshawn Sullivan was at a party saying that he was the person who had assaulted R.L. Police arranged a photo lineup with R.L. She identified Sullivan as her assailant.

¶6. On June 5, 2015, Sullivan was arrested and charged with aggravated assault. Police detectives testified at trial that Sullivan waived his Miranda rights² and stated that he had been drinking on Dabbs Street the night of the incident. He also said that he walked home on a route that, according to detectives, took him close to R.L.'s home. When Sullivan said that he did not strike R.L. in the head with a hammer, the detectives pointed out that they had not revealed any of the details of the assault. Sullivan stopped talking and, according to investigators, then asked for a lawyer.

¶7. Sullivan was ultimately indicted, and charged with breaking and entering, attempted kidnapping and felony child abuse. A jury trial was conducted during which prosecutors were allowed to present evidence of another charge against Sullivan involving a girl named K.L. and evidence of contacts he had with a girl named R.M.

¶8. K.L., age fourteen, testified that during the early morning hours of May 18, 2015, she awoke when she felt herself being pulled out of her bedroom window. Her bed was directly under the window and a man had opened it, reached down, and started lifting her up and out. She awoke and struggled. When she tried to scream, he forced a towel into her mouth, cutting her lip. He had her halfway out of the window when she broke free and ran down the hall where she met her mother. Although the man wore a mask, K.L. remembered his eyes.

¶9. A few days later, K.L.'s mother, Kizzy Thomas, encountered a man she thought was named "Mr. Hattiesburg"; his real name is Derrian Moye. Moye told Thomas that he was a friend of Sullivan's mother. Ultimately, he made veiled threats to Thomas about pursuing K.L.'s assault case. Thomas reported this incident to the police, who arrested and charged Moye with witness tampering.

¶10. Thomas learned from children in the neighborhood who recognized "Mr. Hattiesburg" that he hung out with someone named "Mad Five." From a cousin, she learned that "Mad Five" was Sullivan. Thomas found Mad Five's Facebook page and showed it to K.L. K.L. identified Sullivan as the man who tried to kidnap her. K.L. also testified that she had seen Sullivan on two prior occasions; once at her cousin's birthday party and another time just three days before her attack. During her second encounter, Sullivan walked by her home, saw her on her porch, and asked if he could come in. She especially recalled his eyes, "spooky" and staring at her, which enabled her to identify Sullivan as her attacker from his Facebook page and a police photo lineup.

¶11. R.M., yet another child in the area, had contacts with Sullivan on Facebook. He had communicated with her through his account styled "Mad Five Sullivan." At one point, he texted R.M. at 11 p.m. and asked her which window led to her bedroom. He asked to come see her but she declined. He asked again about the location of her window. These texts and Facebook exchanges were entered into evidence. Sullivan did not deny his contacts with R.M. or K.L., but he denied that he tried to kidnap K.L.

¶12. Prior to trial, Sullivan challenged the admissibility of K.L.'s and R.M.'s testimonies through a motion in limine. After hearing argument, the trial court allowed their testimonies into evidence based upon the State's assertions that it was being offered to prove the identity of R.L.'s assailant, the common scheme that Sullivan used, and his intent. Sullivan also filed a motion in limine to exclude Pruitt's testimony that led to the photo lineup, which was granted. But Sullivan's counsel withdrew the objection during the trial.

¶13. At trial, Sullivan testified in his defense and denied assaulting R.L. On the night of the incident he said he was hanging out with his friends—other members of the Almighty Vice Lord Nation—drinking and selling crack until 3:30 a.m. He said he was walking home when he spotted Hogen, who gave him a ride. Hogen had testified earlier and denied this allegation. Sullivan admitted the Facebook exchanges with R.M. and said that he talked to K.L. one day while walking his dog. He also admitted to speaking to his "spiritual advisor" and "community leader," Moye, about the allegations. According to Sullivan, Moye said he would look into it.

¶14. The jury convicted Sullivan on all three counts. He was sentenced to twenty-five years for burglary, to thirty years for attempted kidnapping, and to life for felony child abuse. Sullivan appeals these convictions.

¶15. Sullivan's appointed appellate counsel raises three issues:

I. Whether the circuit court abused its discretion in admitting evidence of Sullivan's other bad acts.

II. Whether the circuit court erred in allowing hearsay testimony of Brianna Pruitt.

III. Whether there was sufficient evidence to sustain Sullivan's attempted kidnapping conviction or, in the alternative, whether the jury's verdict was against the overwhelming weight of the evidence.

Sullivan subsequently filed a pro se brief and raised additional issues that we have rephrased for clarity:

IV. Whether Sullivan's constitutional right to a speedy trial was violated.

V. Whether the weight of the evidence supported the jury's verdicts for burglary and child abuse.

VI. Whether the prosecutor erred by charging Sullivan with burglary of a dwelling, attempted kidnapping, and felony child abuse.

VII. Whether the trial court erred in admitting Sullivan's post- Miranda statement.

VIII. Whether the trial court erred by allowing Detective Smith to testify.

IX. Whether the trial court erred by refusing proposed jury instructions D-2 and D-8.

X. Whether the trial judge engaged in judicial misconduct.

XI. Whether the prosecutor engaged in prosecutorial misconduct.

XII. Whether Sullivan received ineffective assistance of counsel.

DISCUSSION

I. Whether the circuit court abused its discretion in admitting evidence of Sullivan's other bad acts.

¶16. Sullivan challenges the admissibility of K.L.'s and R.M.'s testimonies as impermissible evidence of other bad acts. The appellate court reviews the admission of evidence under the abuse-of-discretion standard and evidentiary rulings are affirmed unless they affect a substantial right of the complaining party. Boggs v. State , 188 So. 3d 515, 519 (¶9) (Miss. 2016).

¶17. Mississippi Rule of Evidence 404(b) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

¶18. Thus, evidence of other acts or crimes cannot be admitted to show that a defendant acted in conformity with his or her character. For example, in Robinson v. State , 35 So. 3d 501, 506-507 (¶16) (Miss. 2010), evidence that a defendant beat and threatened to kill a prior girlfriend was admitted in that defendant's trial for murdering his current girlfriend because it was entered merely to show the defendant's violent nature. The Mississippi Supreme Court found this to be reversible error. Id. at 507 (¶18).

¶19. However, evidence of other acts can be admissible if the prosecutor clearly articulates the alternative purpose for the evidence, and shows...