Wright v. State, 2005-KA-01729-SCT.
| Decision Date | 05 April 2007 |
| Docket Number | No. 2005-KA-01729-SCT.,2005-KA-01729-SCT. |
| Citation | 958 So.2d 158 |
| Parties | Willie Joe WRIGHT v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Craig A. Conway, attorney for appellant.
Office of the Attorney General by Deirdre McCrory, attorney for appellee.
EN BANC.
¶ 1. The Lauderdale County Circuit Court found Willie Joe Wright guilty of burglary and rape. He was sentenced to serve two consecutive twenty-five year sentences. Wright claims the trial court erred by: denying his motion for mistrial based upon comments made by the prosecution in closing argument; overruling his continuing objection to hearsay testimony presented by the state; and failing to grant his motion to dismiss the indictment, motion for directed verdict and JNOV. Wright also claims that reversal is warranted due to cumulative errors committed by the state at trial. Finding no error, we affirm.
¶ 2. Ann Pope1, a 20-year-old woman, lived alone in a duplex in Lauderdale County. On May 29, 2004, she called Wright, the maintenance repairman, and requested that a window unit be installed. She and Wright were acquaintances and he had been over to her apartment several times in a social capacity. However, they had never been sexually involved. He installed the air conditioner, then made sexual advances which Pope rejected. Later that night she awoke to the sound of someone calling her name, and saw that Wright had entered her apartment, although she had previously locked the doors. With his pants down, he placed something2 against her neck, commanded her to remove her clothes, and raped her. Afterward Pope asked how he got in, and Wright told her she needed to lock her kitchen window.
¶ 3. After Wright left, Pope called Darryl Hampton, a family friend, to come and get her, and when he arrived, he noticed that the kitchen window was open and saw a tear in the screen. Pope was taken to the hospital where a rape kit test was performed. A few days later, Detective James Hall went to the apartment to survey the crime scene, where he confirmed that the kitchen window screen had been slashed.
¶ 4. In the trial court proceeding, the parties stipulated that Wright's semen was identified from the victim's medical examination. The state presented three witnesses: the victim, Hampton, and Hall. Hampton admitted that he did not have any first-hand knowledge of the incident itself except for the condition of the window screen. Defense counsel repeatedly objected to his testimony regarding the rape, contending that anything the victim told Hampton was hearsay.3 At the conclusion of the state's case, the defense moved for a directed verdict or dismissal, but the trial court denied both.
¶ 5. During closing argument, Wright timely objected to two comments made by the state regarding Wright's defense. He argued that these statements violated his Fifth and Fourteenth Amendment rights, and moved for a mistrial, which was denied. The jury found Wright guilty on both counts, and sentenced him to two consecutive twenty-five year sentences. His motion for JNOV was also denied.
¶ 6. Whether to grant a mistrial is within the sound discretion of the trial court. Shelton v. State, 853 So.2d 1171, 1183 (Miss.2003). The standard of review for denial of a motion for mistrial is abuse of discretion. Pulphus v. State, 782 So.2d 1220, 1222 (Miss.2001).
¶ 7. A criminal defendant has the right to elect not to take the witness stand in his own defense. Miss. Const., art. XXVI; U.S. Const. amend. V. Balanced against this constitutional interest is the rule that attorneys are to be given wide latitude in making their closing arguments. In Jimpson v. State, 532 So.2d 985, 991 (Miss.1988) we wrote that "although a direct reference to the defendant's failure to testify is strictly prohibited, all other statements must necessarily be looked at on a case by case basis." We also said that "[t]here is a difference, however, between a comment on the defendant's failure to testify and a comment on the failure to put on a successful defense." Id. (emphasis in original). The state is entitled to comment on the lack of any defense, and such comment will not be construed as a reference to the defendant's failure to testify by innuendo and insinuation. Shook v. State, 552 So.2d 841, 851 (Miss.1989) (emphasis added). The question is whether the prosecutor's statement can be construed as commenting upon the failure of the defendant to take the stand. Ladner v. State, 584 So.2d 743, 754 (Miss.1991).
¶ 8. Today we clarify the holdings in our prior cases. What is prohibited is any reference to the defendant's failure to testify implying that such failure is improper, or that it indicates the defendant's guilt. Prosecutors must always choose their words very carefully in this crucial aspect of the trial.
¶ 9. Wright contends that, in two instances during closing argument, the state improperly commented on his failure to take the stand in violation of his Fifth Amendment rights. He made timely objections and moved for a mistrial in each instance, but his motions were denied. The state argues that the prosecutor was merely addressing the defendant's failure to present any case at all, and that such comments are permissible.
¶ 10. As a prefatory matter, it is critical to focus on the fact that the initial comments which Wright finds objectionable concerned a jury instruction given by the trial court. Instruction C7, which was given without objection, stated: "The court instructs the Jury that you must not consider the fact that the defendant did not testify as evidence against him and no inference of any kind may be drawn from the fact that the defendant did not testify in this case." In fact, defense counsel had pre-filed Instruction No. D-5, which stated: During the jury instruction conference, in considering the proposed defense instructions, defense counsel stated that he was withdrawing defendant's Instruction No. D-5 because "it is essentially the same" as the trial court's Jury Instruction No. C-7, which was by that time already given.
¶ 11. As the prosecutor stood to address the jury in closing arguments, significant critical evidence was before the jury. During cross-examination of Detective Hall, it was obvious that defense counsel was attempting to set up (at least inferentially) the defense of consensual sex between the victim and Wright. Likewise, the victim testified that she knew Wright because he had been at her apartment "at parties." The victim testified that whenever she had maintenance problems her landlord would send Wright to perform the maintenance. On the day of the rape (which occurred later that night), Wright had been at the victim's apartment to put in an air conditioner. During this time, as he had done in the past, he made sexual comments and innuendos to the victim, which she rebuffed. During the cross-examination of the victim, defense counsel asked the victim about parties at her apartment, attended by Wright and others, where drugs were used. Defense counsel also questioned the victim about a third person (a man) being at her apartment earlier in the day when Wright came to perform his maintenance work, referring to this other man as "your boyfriend." Defense counsel asked the victim if a fight ensued between her and "her boyfriend" because of Wright's presence. The victim denied that this other man was her boyfriend, or that there was any argument for any reason between them on that day.
¶ 12. With this backdrop, when the prosecutor was addressing the jury during the opening phase of the State's closing arguments, she stated, inter alia:
I don't know if all of you ever rented before, but you deal with your landlord or you deal with someone that they employ. You don't really get your choice of maintenance people to come over and do the work. But she had a working relationship with [Wright], as she knew him, because he had done things in there before. And in fact, she even called, I think, his nephew or something, to get in touch with him to come and do that. He came that day to help her. And she told you that as he had done in the past, he made some flirty advances, whatever you want to call it. Some kind of feeling her out to see if she might be interested in a way. And she dealt with it the same way she dealt with it in the past. Maybe it was the right way; maybe it was the wrong way. But she kind of laughed it off saying: You know, we don't have anything to do with each other. You know, ha, ha, ha. You know, I am not interested in you.
But a nice way but [sic] to let him know that she was not interested in him in that way.
Now, there has been talk about [defense counsel] asking questions about her having a boyfriend there. She said that wasn't her boyfriend; she didn't have a boyfriend. And him being jealous of the defendant in some way. Ladies and gentlemen, again, that is not evidence. He could ask a question whether Santa Claus was at her house that day. That doesn't mean that Santa Claus was there that day. It's important that you know that the defendant has the right to testify or not testify. That's one of the jury instructions you will have. And he has the right not to testify. But he also has the right to call any witnesses that he wants to call in his case. Now there was no—
At this point, defense counsel objected, but not on the basis of the prosecutor's comment on the defendant's failure to testify. Instead, defense counsel objected and stated that "the jury instructions says [sic] he does not have to prove anything." The...
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