Tallant v. State

• Decision Date: 14 December 2021
• Docket Number: 2020-CP-01077-COA
• Parties: John TALLANT a/k/a John Harley Tallant a/k/a John H. Tallant, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

345 So.3d 575

John TALLANT a/k/a John Harley Tallant a/k/a John H. Tallant, Appellant

v.STATE of Mississippi, Appellee

NO. 2020-CP-01077-COA

Court of Appeals of Mississippi.

December 14, 2021

Rehearing Denied May 17, 2022

ATTORNEY FOR APPELLANT: JOHN TALLANT (PRO SE)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE

BEFORE WILSON, P.J., WESTBROOKS AND McDONALD, JJ.

McDONALD, J., FOR THE COURT:

¶1. A Lee County grand jury indicted John Tallant on three counts (Counts I-III) of sending or transmitting child pornography in violation of Mississippi Code Annotated section 97-5-33 (Rev. 2014), two counts (Counts IV-V) of sexual battery of a child under fourteen years of age in violation of Mississippi Code Annotated section 97-3-95(1)(d) (Rev. 2014), and two counts (Counts VI-VII) of fondling a child under sixteen years of age in violation of Mississippi Code Annotated section 97-5-23 (Supp. 2015). On August 18, 2017, Tallant pled guilty to Counts I-III¹ and was sentenced to forty years (with fifteen years and one month suspended and twenty-four years and eleven months to serve day-for-day) in the custody of the Mississippi Department of Corrections (MDOC) and five years of post-release supervision (PRS) upon his release from prison.² On September 17, 2018, Tallant filed a pleading entitled "Motion Seeking Post-Conviction Collateral Relief [(PCR)]" after the time for a direct appeal had expired. In that pleading, he requested to see sealed records at the district attorney's (D.A.) office. The circuit court denied the motion on November 30, 2018. Tallant filed another motion pro se, which was entitled "Motion for Post-Conviction Relief," on August 24, 2020, although he signed it on August 17, 2020. In this pleading, Tallant alleged that he was deprived of his Fifth Amendment right against double jeopardy due to an alleged multiplicitous indictment and that his trial counsel was ineffective. The circuit court denied Tallant's second motion, finding no merit to his arguments and that it was a successive PCR motion. Tallant appeals the denial of the second motion. Because Tallant's first post-conviction pleading was not a properly filed PCR motion, we find that his second pleading is not successive. However, we affirm the circuit court's denial of Tallant's August 2020 PCR motion.

Statement of the Facts and Procedural History

¶2. On January 25, 2017, Corporal Donna Franks of the Lee County Sheriff's Department signed an affidavit stating that Tallant had committed sexual battery against a minor child. That same day, the Lee County Justice Court issued a warrant for Tallant's arrest. He was arrested on February 28, 2017, in Tupelo, Mississippi, and transported to the Lee County jail. Investigator Len Schaefer of the Lee County Sheriff's Department read Tallant his Miranda rights and further provided him with a written statement of those rights and a waiver that Tallant could sign. Initially, Tallant refused to speak to Schaefer without counsel present. Later, Tallant waived his Miranda rights and made a voluntary confession. In his confession, Tallant stated that he sent his wife ten to twenty images in multiple texts of children engaging in sexual acts and that he knew this was child pornography. Tallant further admitted to engaging in inappropriate sexual acts with his daughter. Tallant posted a bond in the sum of $350,000 and was released from jail.

¶3. A Lee County grand jury indicted Tallant on June 16, 2017, on three counts (Counts I-III) of sending or transmitting child pornography in violation of Mississippi Code Annotated section 97-5-33, two counts (Counts IV-V) of sexual battery of a child under fourteen years of age in violation of Mississippi Code Annotated section 97-3-95(1)(d), and two counts (Counts VI-VII) of fondling a child under sixteen years old in violation of Mississippi Code Annotated section 97-5-23.

¶4. Tallant was arraigned on July 5, 2017. On the day of the arraignment, the State filed a motion to continue to hold Tallant without bond pending trial. At the arraignment, the circuit court revoked Tallant's bond, appointed him an attorney, and set the hearing on the State's motion for July 6, 2017. At that hearing, Franks and Schaefer testified about the investigation. Franks presented several text-message logs from Tallant, which included both multiple messages and multiple pictures of child pornography:

STATE: Investigator Franks, as part of your investigation did you or someone on behalf of the sheriff's department obtain text messages between the defendant and his wife, Lyn Tallant?

FRANKS: Yes, sir.

STATE: And those text message logs include contents of text messages and pictures?

FRANKS: Yes, sir.

In addition, Franks presented various text messages between Tallant and his wife in which Tallant admitted to engaging in inappropriate sexual acts with his daughter. The State also presented a written voluntary statement from Tallant's wife. The court overruled the defense's spousal-privilege objection. In her statement, Tallant's wife alleged that she did not know about Tallant's interests in children until he told her that "he wanted to kidnap some kids (girls) to lay and play with and rape them." When she had their daughter, she caught Tallant inappropriately touching their child, starting when the child was age one. According to Tallant's wife, their daughter "began to complain [about] her bottom hurting," but Tallant would not allow her to take the child to the doctor's office. Although she was afraid of Tallant, she finally took their daughter to the doctor to protect her. Based on witness testimony and evidence, the court granted the State's motion to hold Tallant without bond.

¶5. Tallant filed a motion to suppress the voluntary statement that he gave to Investigator Schaefer on July 24, 2017. He alleged that Schaefer gave him his Miranda rights and told him that he did not have to tell him anything. But, Tallant alleged, Schaefer added that he would be put in the general population at the jail with other inmates who would be told about the accusations against him. Tallant also claimed that he confessed because he was afraid of what the inmates might do to him.

¶6. On July 31, 2017, Tallant filed three other motions: a motion for special venire, a motion to change venue, and a motion to compel the State to provide access to his computer hard drive. In his motion for special venire, he requested that the circuit court include three hundred additional prospective jurors because of the numerous articles and Facebook posts about the case. The motion to change venue was based on a possibility of a tainted jury pool. Tallant's motion to compel asked that the State to provide access to Tallant's hard drive that it had seized.

¶7. On August 18, 2017, the circuit court held a hearing on Tallant's motions. Tallant's counsel informed the court that Tallant did not wish to proceed on the motion for special venire or the motion to change venue at that time. Concerning the suppression of his voluntary statement, Tallant testified that he had refused to waive his right to counsel, but Schaefer continued to interrogate him without giving him an opportunity to consult with an attorney. The State responded to Tallant's motion by showing to the court that in his voluntary statement Tallant admitted he initiated the conversation with Schaefer:

I asked to speak to Inv. Schaefer after I didn't sign my rights waiver after I got arrested. I didn't completely understand the process and he answered my questions. I agreed to speak with him and signed my Miranda Warning. I fully understood that I could stop talking and get an attorney.

In a bench ruling, the court denied Tallant's motion to suppress his voluntary statement. On the motion to compel, the circuit court ordered the State to make the evidence available for viewing by Tallant and his counsel at the D.A.'s office. However, the circuit court placed the evidence under seal and prohibited the State from transmitting or distributing copies of this material to the defense due to the sensitive nature of the evidence.

¶8. On the same day of the hearing, Tallant decided to plead guilty to three counts of transmitting child pornography. The circuit court read aloud the three pornography counts of the indictment, each of which stated:

[I]n said County and State between October 1, 2016 and October 31, 2016, [Tallant] did willfully, unlawfully, feloniously and knowingly send or transmit a photograph of an actual child under the age of eighteen years engaging in sexually explicit conduct as defined by Mississippi Code Section 97-5-31, in violation of Mississippi Code Section 97-5-33 [.]

The State made the following sentencing recommendation:

THE COURT: Is there a recommendation by the State?

STATE: Yes, Your Honor. In Count I, the State recommends the defendant be sentenced to 40 years in the custody of the Mississippi Department of Corrections, fifteen years, one month suspended, leaving 24 years, 11 months to serve, and that's to be served day for day.

The court asked Tallant if he understood that he was facing 120 years in the custody of the MDOC on the child-pornography charges. He responded that he understood. The circuit court asked Tallant if he understood the State's sentencing recommendation, and he responded that he did. The court also told Tallant that the court did not have to accept the State's sentencing recommendation. Tallant responded that he understood this. The circuit court questioned Tallant about his understanding of pleading guilty and waiving his constitutional rights, to which he responded that he understood.

¶9. Tallant pled guilty to the three counts of transmitting child pornography.

As a part of Tallant's plea agreement, the State agreed to retire both the sexual-battery charges (Counts IV-V) and the fondling charges (Counts VI-VII). Finding that Tallant's plea was given knowingly, freely, and voluntarily, the court accepted...