Townsend v. State

• Decision Date: 05 June 2003
• Docket Number: No. 95-KA-00234-SCT, No. 2002-KA-00247-SCT.
• Citation: 847 So.2d 825
• Parties: Robert Lee TOWNSEND v. STATE of Mississippi.
• Court: Mississippi Supreme Court

847 So.2d 825

Robert Lee TOWNSEND v. STATE of Mississippi.

Nos. 95-KA-00234-SCT, 2002-KA-00247-SCT.

Supreme Court of Mississippi.

June 5, 2003.

Cheryl Ann Webster, Clarksdale, Darnell Felton, attorneys for appellant.

Office of the Attorney General by Charles W. Maris, Jr., attorney for appellee.

Before McRAE, P.J., DIAZ and CARLSON, JJ.

DIAZ, Justice, for the Court.

¶ 1. Robert Lee Townsend (Townsend) was convicted in the Circuit Court of Coahoma County, Honorable Elzy Jonathan Smith, Jr., Circuit Judge, presiding, of the crimes of kidnapping, capital rape, and sexual battery. He was sentenced to serve consecutive terms of imprisonment of thirty years, life, and thirty years. Aggrieved by the decision, he appealed.¹

¶ 2. Townsend's appellate counsel, Cheryl Ann Webster (Webster), has filed a brief pursuant to Brown v. State, 799 So.2d 870 (Miss.2001), which was in turn based on Turner v. State, 818 So.2d 1186 (Miss. 2001). Webster states as follows:

Appellant's court appointed appeal lawyer, Cheryl Ann Webster, has determined that the defendant, Robert Lee Townsend is unlikely to prevail on appeal; further that I have scoured the record thoroughly and asked Mr. Thomas Pearson, who is not appointed to represent Mr. Townsend but who is a member in good standing with the Ms. Bar Association, to do the same. It is my considered opinion after conferring with Mr. Pearson that the error in this trial does not rise to the level of reversible error and therefore the appeal of this case would be frivolous.

Webster then lists the following five errors which might support an appeal:

I. Denial of the Motion for Authority to Employ nonlegal assistance at Public expense.

II. The Court admitted illegal testimony by and through Andrew Thompson, Sheriff, over the Defendant's objections in violation of the Rules of Evidence.

III. The Court admitted into evidence certain illegal items as exhibits particularly State's exhibits 7, 19, 29, 22, and 31 in violation of MRC 901.

IV. The Court admitted into evidence certain illegal testimony concerning State's exhibit # 1 and State's exhibit #3 in violation of MRC 901.

V. The Court admitted into evidence certain illegal items as exhibits particularly State's exhibit # 1 and State's exhibit # 3 in violation of MRC 901.²

Webster also refers to a letter to Townsend in which she informs him of his "right to file a pro se supplemental brief." As of this date, no filings from Townsend have been received.

¶ 3. Webster concludes that she has complied with "the procedure outlined in Brown v. State, 799 So.2d 870 (Miss.2001), with the exception of having another attorney independently review the record for his considered opinion."

¶ 4. The State submits that while defense counsel has complied with this Court's holding in Turner, the issue on appeal is whether the procedure in Turner meets minimum constitutional requirements.

¶ 5. After having carefully reviewed the entire record in this case, this Court concludes that no reversible error occurred during the trial. Thus, we affirm.

FACTS

¶ 6. On the night of December 10, 1994, the victim, a ten-year old girl, was helping her grandparents at their business in Coahoma County when Townsend came in and made a purchase. He took a liking to the victim and had a conversation with her, during which he told her to come outside in five minutes because he needed to tell her something. Townsend then left. Five minutes later, the victim went outside. Townsend grabbed her and, despite her protests, pulled her into his truck. Townsend then drove to his home in Clarksdale. He took the victim inside and physically assaulted her when she refused to put on some men's clothes he gave her. After telling her that he would feed her to the animals and birds if she resisted Townsend put on a "nasty" movie, forced the victim onto the bed, and removed his clothes. He then sexually assaulted her several different times and ways. Upon being interrupted by someone knocking on the door, Townsend hurriedly got up and turned the blood-stained mattress over. After dressing, he and the victim got back into his truck. Before letting her out two blocks from her cousin's house, Townsend told the victim, "You're my woman now," and instructed her to fabricate a story to explain her absence.

¶ 7. The victim did not comply with Townsend's instructions. She immediately told the whole story to her family and the Sheriff. Though bleeding and hurting, on the way to the hospital, the victim led officers to Townsend's house. Her description of the interior and exterior of the house matched perfectly. Specifically, she described the vehicles outside the house, the lotion Townsend had used, the movie he had played, the knife he had held to her throat, the clothes he had worn (down to his snake-skin boots), the particular sheets and pillow cases, and the mattress with the blood on the reverse side. The victim later selected Townsend's picture from a photographic lineup and, at trial, identified him as her assailant.

¶ 8. Dr. Charles D. Cesare, a gynecologist, treated the victim at the emergency room. He testified at trial that the injuries the victim received were consistent with a child having been penetrated by an adult male organ. The victim had a significant amount of bleeding deep in her vagina. Tests revealed the presence of seminal fluid in the victim's vaginal and anal cavities. According to Dr. Cesare, "[s]omething forceably entered and dilated and tore the delicate tissues of the vaginal tube and of the rectum." There was also bruising to her neck, as well as an injury to the neck "where a sharp object or either a scratch had occurred," and "[t]he back of her head had a little bit of swelling, where it looks like the hair maybe had been traumatized and swollen, about half a centimeter." Dr. Cesare performed surgery on the victim to suture her wounds, and the child remained in the hospital for three to four days.

ANALYSIS

I. DENIAL OF THE MOTION FOR AUTHORITY TO EMPLOY NONLEGAL ASSISTANCE AT PUBLIC EXPENSE.

¶ 9. The gist of Townsend's motion to this effect is that his attorneys needed assistance in examining the numerous items of physical and documentary evidence and, because they were not experienced with the medical examinations and procedures for identifying rape evidence, they needed assistance in that regard as well. Counsel argued:

In order for the presentation of a proper defense and effective assistance of counsel, Defendant Robert Lee Townsend [should] be authorized to employ at the expense of Coahoma County, Mississippi a private investigator, a serologist, a gynecologist with experience in treating rape victims, and a physician with experience in obtaining rape evidence [and] physical evidence from a male accused of rape.

No order of denial is included in the clerk's papers or mentioned anywhere in the record as far as this Court can find; however, Townsend received no such assistance.

¶ 10. In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court, delineated three factors to be utilized in determining whether a defendant is entitled to the assistance of an expert witness to assist in the defense of his case. Richardson v. State, 767 So.2d 195, 199 (¶ 19) (Miss.2000). Those factors are: "1) the private interest that will be affected by the action of the State; 2) the governmental interest that will be affected if the safeguard is to be provided; and 3) the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided." Id.

¶ 11. As the Court recognized in Ake, the private interest at stake is an individual's liberty. 470 U.S. at 78,105 S.Ct. 1087. Bearing in mind the State's duty to ensure "fair and accurate adjudication of criminal cases," the only significant interest that the Supreme Court found for the State is its economic interest. Id. at 78-79, 105 S.Ct. 1087. The trial court in the instant case recognized that the only crime more serious than the one leveled against Townsend is when the defendant faces the death penalty. The trial judge also recognized that Townsend's attorneys really had no defense other than to cross-examine the State's witnesses. Because of this, the trial judge granted Townsend's counsel wide latitude on cross-examination of the State's witnesses. Indeed, the trial judge told Townsend's counsel "you can go on forever."

¶ 12. "The trial court's decision on a motion for funding for consultants or investigators for an indigent defendant is reviewed for abuse of discretion." Grayson v. State, 806 So.2d 241, 254 (Miss.2001) (citing Hansen v. State, 592 So.2d 114, 125 (Miss.1991)). The State does not have a constitutional obligation to provide indigent defendants with the costs of expert assistance upon every demand. Johnson v. State, 476 So.2d 1195, 1202 (Miss.1985).

¶ 13. However, this Court does recognize that expert assistance should be paid for in certain cases and will address the need for support on a case-by-case basis to determine whether a defendant is prejudiced by the denial of expert assistance to the extent that he or she is denied a fair trial. Id. In determining whether a defendant was denied a fair trial because of failure to appoint or allow funds for an expert, some of the factors to consider are whether and to what degree the defendant had access to the State's experts, whether the defendant had the opportunity to cross-examine those experts, and lack of prejudice or incompetence of the State's experts. Fisher v. City of Eupora, 587 So.2d 878, 883 (Miss.1991). This Court has also considered to what extent the State's case depends upon the State's expert, Tubbs v. State, 402 So.2d 830, 836 (Miss.1981), and the risk of error in resolving the issue for which the expert is requested. Johnson v. State, 529 So.2d 577, 592 (Miss.1988).

¶ 14. The trial...