author: MAXWELL, JUSTICE, FOR THE COURT:

text:
    Charles E. BLAKE a/k/a Charles Blake a/k/a Charles Edward Blake v. STATE of Mississippi
    NO. 2015-KA-00434-SCT
    Supreme Court of Mississippi.
    October 4, 2018 Rehearing Denied November 29, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER, BY: HUNTER NOLAN AIKENS, GEORGE T. HOLMES, JACKSON
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ALICIA MARIE AINSWORTH, JACKSON
    EN BANC.
   MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. Charles Blake was convicted of sexually battering a seven-year-old child during a family barbeque. He was sentenced to life in prison. On appeal, Blake argues the judge made several evidentiary errors that entitle him to a new trial. But after review, we find no errors, particularly none that warrant reversal. The evidence that Blake sexually penetrated Robert's anus with his finger-or, as the young child put it, dug "in his butt"-was so overwhelming as to render any alleged evidentiary error harmless. We affirm.

Background Facts and Procedural History

I. Sexual Battery

¶ 2. Seven-year-old Robert lived with his mother and older sister at his grandmother's house. On Labor Day, his grandmother hosted a barbeque. Included in this family gathering were the grandmother's boyfriend and the boyfriend's brother, Charles Blake. Blake ingratiated himself with the other guests, buying alcohol for the grown-ups and taking the kids to the store to buy treats with the $5 each he gave them. According to Robert, Blake made a separate proposal to him, specifically offering the child an additional $100 to visit Blake at his house.

¶ 3. Robert's uncle, who was manning the grill, told his and his sister's kids to play inside, so the grown-ups could enjoy some adult conversation. While the kids were playing inside, Blake entered the home. Robert's cousins and sister were in the dining room, all sitting on a couch. At first, they did not notice Robert was not with them. But a bit later, his teenaged cousin looked into the adjacent living room and saw Blake in a chair with Robert standing in front of him. This same cousin wondered aloud what Blake was doing with Robert because she saw Blake "pulling [Robert] back and forth." When Robert's sister turned her attention to the living room, she too saw Blake physically moving Robert back and forth. From the strange look on Robert's face, she knew something was wrong.

¶ 4. The two girls jumped up and went toward Robert. He quietly whispered for his sister and cousin to "go get ma." His sister went straight to their mother, who was in her bedroom. She told her something was wrong with Robert. His mother called to him several times. Robert eventually emerged from the table. He was shaking and had tears in his eyes. Robert had a terrified look on his face-an expression his mother had never seen before. The young child told his mother and sister that Blake had been "in there digging in my butt."

¶ 5. Robert's mother testified she blacked out in shock by this news. Witnesses corroborated that she grabbed a bottle and charged toward Blake. On the witness stand, she readily admitted becoming enraged and attacking Blake. Blake ran out of the house. And Robert's mother called the police, who advised her to take Robert to the hospital.

II. Investigation

¶ 6. Police Sergeant Norman Starks met the family at the hospital and interviewed the mother. Afterwards, he went to the grandmother's house to view the crime scene and gather a list of witnesses.

¶ 7. The next day, Blake and his brother came to the police station for questioning. Blake told him he had left his bag behind when he fled from Robert's enraged mother. And he asked for Sergeant Starks's help to get it back. Robert's uncle had the bag and agreed to drop it off at the police station. Before returning the bag to Blake, Sergeant Starks opened the bag and inventoried its contents in front of Blake and Blake's brother, apparently without any objection. On top of all items in the bag was a tube of "Warm Touch" warming gel lubricant. Sergeant Starks told Blake he would have to retain the tube as potential evidence. He photographed the rest of the items-including several latex gloves-and returned the bag to Blake.

¶ 8. The next month, Sergeant Starks took Robert to a forensic specialist trained in interviewing children. Robert told the interviewer how Blake had touched his buttocks. When she asked him to explain what he meant by "touched," Robert demonstrated to her how Blake's "finger wiggled inside his buttocks and his buttocks hurt."

III. Trial

¶ 9. Blake was charged with sexually penetrating Robert, a child under the age of fourteen, by inserting his finger into Robert's anal opening, when Blake was more than twenty-four months older than Robert. See Miss. Code Ann. C 97-3-95(1)(d) (Rev. 2014).

¶ 10. The Friday before trial, Blake moved for a continuance, arguing he needed more time to locate a potential witness-Dr. Jeffrey Ming, the emergency room physician who evaluated Robert that night. The trial court denied this motion. The court found Blake's counsel could not show any diligent efforts to locate Dr. Ming, though Blake had been under indictment for more than two years.

¶ 11. At trial, Sergeant Starks testified first. While he was testifying, the State introduced-over Blake's objection-the photographs of the contents of his bag and the tube of warming gel lubricant.

¶ 12. Robert's mother and sister also testified. Both were allowed, under the tender-years exception, to testify about Robert's statements immediately after the assault. See Miss. R. Evid. 803(25). The two repeated that Robert had said Blake was "digging in my butt." The forensic interviewer also testified about Robert's description of Blake's fingers wiggling in his butt. Robert's sister recounted seeing Blake physically manipulating Robert, back and forth. She recalled the strange look on Robert's face. And Robert's cousin corroborated that Blake, with his hand behind Robert's back, was pulling the child back and forth. Robert's other cousin testified that he was "certain" he saw Blake's hand inside Robert's pants.

¶ 13. The jury then heard from Robert himself. He recounted how Blake "put his hand in my butt." On cross-examination, when asked at what point he whispered to his cousin for help, Robert replied "when [Blake] was digging in my butt."

¶ 14. The defense called no witnesses. Robert's counsel attempted to recall Sergeant Starks to impeach Robert's mother. But the State objected. The trial judge sustained the objection.

¶ 15. Blake's counsel did introduce Robert's medical records from his emergency-room visit. But the trial court struck the emergency-room doctor's diagnosis-"alleged fondling"-because, in the court's view, the description of fondling "may be misleading or confusing to the jury."

¶ 16. The jury found Blake guilty of sexual battery. And the trial judge sentenced Blake, a habitual offender, to life without parole. See Miss. Code Ann. § 97-3-101(3) (Rev. 2014); Miss. Code Ann. § 99-19-83 (Rev. 2015).

IV. Issues on Appeal

¶ 17. After his post-judgment motions were denied, Blake appealed his conviction to this Court. Blake argues:

(1) The trial court violated his Sixth Amendment right to present a complete defense by:
(a) denying his request to recall Sergeant Starks to impeach Robert's mother,
(b) denying his request to continue trial so he could locate the emergency room doctor, and
(c) redacting the doctor's diagnosis from Robert's medical records.
(2) The trial court erred by admitting tender-years testimony.
(3) The trial court erred by admitting into evidence the contents of Blake's bag.

Discussion

I. Blake's Defense

¶ 18. Blake suggests a series of trial-court rulings infringed on his constitutional right to present a full defense in his case. See Ross v. State , 954 So.2d 968, 996 (Miss. 2007) (citing United States v. Stewart , 104 F.3d 1377, 1384 (D.C. Cir. 1997) ). But we discern no error.

A. Attempted Recall of Sergeant Starks

¶ 19. Blake first asserts he was wrongly prohibited from impeaching the credibility of Robert's mother. Blake claims her credibility was an important aspect of his defense because it was she who, through the tender-years exception to the hearsay rule, testified Robert told her Blake had been "digging in my butt."

¶ 20. While Blake was certainly entitled to present his defense theory, any supporting evidence must comply with the Mississippi Rules of Evidence. Terry v. State , 718 So.2d 1115, 1121-22 (Miss. 1998). Rule 613 permits the admission of "[e]xtrinsic evidence of a witness's prior inconsistent statement" if certain conditions are met. Miss. R. Evid. 613(b).

¶ 21. Blake argues the trial court wrongly believed Blake's failure to confront Robert's mother with her prior statement barred Blake from recalling Sergeant Starks to offer extrinsic evidence about the statement. In one respect, we agree with Blake's argument about this ruling.

¶ 22. In the past, Mississippi adhered to the former rigid common-law practice, requiring confrontation before impeachment. This impeachment method mandated that, before an attacking party may offer extrinsic evidence of an inconsistent statement, the witness must be confronted with the statement and be given a chance to explain or deny it. But this is no longer the case in Mississippi courts. Indeed, this Court has held that under Rule 613(b), extrinsic evidence may be offered before a witness has had an opportunity to explain or deny it. In Johnson v. State , this Court explained, "[ Rule] 613(b) does not provide that the witness has to first be afforded the opportunity to explain or deny the statement before the admission of extrinsic evidence of a prior inconsistent statement by a witness." Johnson v. State , 905 So.2d 1209, 1212-13 (Miss. 2005) (emphasis added) (citing Miss. R. Evid. 613(b) ). "The witness must only be afforded the opportunity to explain or deny the statement." Id. ; see also Portis v. State , 245 So.3d 457, 471 (Miss. 2018). So prior confrontation is no longer required under our procedure rules, and it was not required here. Still, after review, we find there was no evidentiary error because there was no admissible prior inconsistent statement for Rule 613(b) purposes.

¶ 23. To be admissible under Rule 613(b), the extrinsic evidence must be a "witness's prior inconsistent statement." Miss. R. Evid. 613(b) (emphasis added); see also Portis , 245 So.3d at 471. And here, the police statement Blake wanted to introduce through Sergeant Starks was not inconsistent with Robert's mother's trial testimony. Instead, Blake hoped to shoehorn his impeachment of the child witnesses' testimony by attacking a statement made by Robert's mother.

¶ 24. Blake's counsel proffered that Sergeant Starks would testify that, when he interviewed Robert's mother at the emergency room, "she specifically stated that none of the children indicated to her that they knew anything or saw anything." This statement is not inconsistent with her trial testimony. On cross-examination, counsel asked Robert's mother:

Q: Now, prior to [hitting Blake], did you make any attempt to talk to any of the kids to ask them what they saw supposedly?
A: No, I did not. The look on my son's face told it all.
Q: Did you tell Mr. Starks that you had talked to those kids after you had attacked Mr. Blake?
A: No.
Q: Did you tell Mr. Starks that the children that you talked to told you that they didn't see anything?
A: No, I did not.

Both the statement and trial testimony can certainly be true. Telling Sergeant Starks that none of the children specifically mentioned to her that they saw anything differs from reporting that each child who was present affirmatively told her he or she did not see Blake assault the child.

¶ 25. Furthermore, that Blake sought to introduce the statement to show Robert's mother reported that the children had said they did not see anything shows Blake's true intent. He did not intend to impeach the mother, but rather to attack the children 's trial testimony about what they purportedly saw Blake do. Because the extrinsic evidence Blake proffered was not proper impeachment evidence, the trial judge did not reversibly err by prohibiting Sergeant Starks from being recalled.

B. Motion for Continuance to Locate Dr. Ming

¶ 26. Blake also claims the trial court erred in denying him a continuance to attempt to find Dr. Ming to testify as an expert witness.

¶ 27. "The grant or denial of a continuance lies within the sound discretion of the trial court." Wilson v. State , 716 So.2d 1096, 1097 (Miss. 1998) (citations omitted). Here the denial of the continuance was based on Blake's failure to show due diligence in trying to locate Dr. Ming. As the trial judge recognized, "in the context of a denied motion for continuance for absence of a witness some showing of due diligence must be made." Wilson v. State , 716 So.2d 1096, 1099 (Miss. 1998). And the record shows "no effort on the part of the defendant to procure the presence of the witness until the trial ... was practically in progress." Id. (quoting Thigpen v. State , 206 Miss. 87, 39 So.2d 768, 769 (1949) ). Blake concedes he did not subpoena Dr. Ming or move for a continuance until the Friday before trial. So the trial court "was well within [its] discretion to deny [Blake's] untimely motion for a continuance." Id.

C. Redacted Medical Diagnosis

¶ 28. Blake also takes issue with the judge's redacting the diagnosis of "alleged fondling" from Robert's emergency-room records, which were admitted into evidence.

¶ 29. The suppression of evidence is within the sound discretion of the trial court. Brown v. State , 890 So.2d 901, 914 (Miss. 2004). And here, the trial judge exercised his discretion to exclude the phrase "alleged fondling" because it potentially could confuse the jury. The trial court was concerned the jury could be misled to think Dr. Ming was using the term "fondling" in the legal sense. There was no indication Dr. Ming understood that "fondling" was a specific statutory crime that differed from the charged crime of "sexual battery." See Miss. R. Evid. 403 ("The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ... confusing the issues[ or] misleading the jury[.]").

¶ 30. Blake argues the trial court erred because "[a]n opinion is not objectionable just because it embraces an ultimate issue." Miss. R. Evid. 704. While Blake is correct that Rule 704 abolished the "ultimate issue rule," the abolition of this rule "does not result in the admission of all opinions." Miss. R. Evid. 704 advisory committee note. As absolutely required under Rules 701 and 702, "opinions must be helpful to a determination of the case before they are admissible." Id. And an opinion "based on inadequately explored legal criteria" would not be helpful. Id.

¶ 31. The trial court determined Dr. Ming's "alleged fondling" diagnosis would not be helpful to the jury, because it was uncertain if Dr. Ming understood the legal meaning of "fondling." Cf. McBeath v. State , 739 So.2d 451, 455 (Miss. Ct. App. 1999) (noting that a medical expert could use the legal label "serious bodily injury" so long as "the witness had the meaning of the term explained"). The medical records give zero indication the legal criteria of the statutory crime of fondling-as opposed to sexual battery-had been explained before Dr. Ming diagnosed Robert with "alleged fondling." So the trial court did not abuse its discretion by excluding the diagnosis as misleading to the jury. See Miss. R. Evid. 403.

II. Tender-Years Exception

¶ 32. Next, Blake insists the trial judge wrongly permitted Robert's mother, Robert's sister, and the forensic interviewer to testify about what Robert told them. In general, statements made outside the court submitted to prove the truth of the matter asserted are inadmissible hearsay. Miss. R. Evid. 801, 802. But our rules do contain several exceptions, including the one the trial court applied here.

¶ 33. Under Rule 803(25), "[a] statement by a child of tender years describing any act of sexual contact with or by another is admissible if" two prerequisites are met:

(A) the court-after a hearing outside the jury's presence-determines that the statement's time, content, and circumstances provide substantial indicia of reliability; and
(B) the child either: (i) testifies; or (ii) is unavailable as a witness, and other evidence corroborates the act.

Miss. R. Evid. 803(25).

¶ 34. Blake challenges the first prerequisite. He asserts the record does not affirmatively show the trial court made on-the-record findings that Robert's statements had substantial indicia of reliability. See Miss. R. Evid. 803(25) advisory committee note ("A finding that there is a substantial indicia of reliability should be made on the record."). When Blake submitted his brief, the appellate record did not contain a transcript of the tender-years hearing. But the record was subsequently supplemented to include this transcript. And this transcript clearly shows the trial court made thorough on-the-record findings about why Robert's statements were reliable.

¶ 35. Although we gave Blake an opportunity to file a supplemental brief, he advanced no further arguments on this issue. Because the record supports the trial court's ruling that the tender-years exception applies, the judge did not abuse his discretion by allowing other witnesses to testify about Robert's description of Blake's sex act.

III. Blake's Bag

¶ 36. Finally, Blake asserts the trial court erred in admitting the contents of his bag.

A. Legality of the Search

¶ 37. Blake first challenges the admission on Fourth Amendment grounds. U.S. Const. amend. IV. Blake claims Sergeant Starks's warrantless search of Blake's bag violated his Fourth Amendment rights, making the bag's contents inadmissible "fruit of the poisonous tree." See Marshall v. State , 584 So.2d 437, 438 (Miss. 1991) (citing Murray v. United States , 487 U.S. 533, 536, 108 S.Ct. 2529, 2533, 101 L.Ed.2d 472 (1988) ) (explaining the "fruit of the poisonous tree" doctrine-also known as the exclusionary rule-deems inadmissible any evidence obtained incident to an unlawful search or seizure). But the Fourth Amendment prohibits unreasonable searches. South Dakota v. Opperman , 428 U.S. 364, 373, 96 S.Ct. 3092, 3099, 49 L.Ed.2d 1000 (1976). And here, there was nothing unreasonable about Sergeant Starks's inventory search of Blake's bag.

¶ 38. To begin with, any expectation of privacy Blake may otherwise have enjoyed disappeared when Blake told Sergeant Starks about the bag he left at the crime scene and willingly enlisted the officer's help in getting it back. Cf. Gales v. State , 153 So.3d 632, 639 (Miss. 2014) (citing Katz v. United States , 389 U.S. 347, 359, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J. concurring) (holding that a defendant who voluntarily showed the money in his pocket to the officer who stopped him "no longer had a 'reasonable expectation of privacy' as to the money under the Fourth Amendment"). Further, Sergeant Starks had a legitimate purpose in conducting the inventory search. The bag was delivered into Sergeant Starks's care, while Blake was at the police station for questioning. And Sergeant Starks testified he followed standard police procedure. He opened the bag and catalogued its contents in front of Blake, with no apparent objection, "to make sure that the contents in the bag was [sic] the exact contents that [Blake] knew to be his." This was done so Blake could not claim any items were taken.

¶ 39. The United States Supreme Court has "found that inventory procedures serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger." Colorado v. Bertine , 479 U.S. 367, 372, 107 S.Ct. 738, 741, 93 L.Ed.2d 739 (1987) (discussing Opperman , 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 ). "In light of these strong governmental interests and the diminished expectation of privacy," the inventory search of Blake's bag was not unreasonable. Id. So the contents of the bag were not "fruit of the poisonous tree."

B. Admissibility of the Bag's Contents

¶ 40. Alternatively, Blake argues the trial court erred by admitting the bag's contents-specifically, the tube of "Warm Touch" lubricant and the latex gloves-because these items were irrelevant and, even if relevant, unfairly prejudiced him. See Miss. R. Evid. 403.

¶ 41. We find no error in the admission of the items-particularly no reversible error. In general, the decision to admit or suppress evidence falls within the trial judge's discretion and will not be reversed absent an abuse of that discretion. Townsend v. State , 847 So.2d 825, 831 (Miss. 2003). The decision to admit the contents of Blake's duffle bag is no different. As this Court has held, "[i]n an effort to determine the intent of the person charged with [a] crime, it is permissible to show the surrounding circumstances and physical objects used or useful in the commission of a crime." Wilkins v. State , 264 So.2d 411, 413 (Miss. 1972) (emphasis added). The determination "as to whether or not [objects] found near the scene of a [crime] are near enough in time and place to be of probative evidentiary value" falls "within the sound discretion of the trial judge." Id. at 414. And if the judge determines these objects either have probative value or "constitute a part of the surrounding scene or picture," the objects are admissible-"even where it is not claimed nor proved that they were used in the commission of the alleged crime." Id. at 413.

¶ 42. Relying on Wilkins , a plurality of this Court in Burleson v. State , 166 So.3d 499, 508 (Miss. 2015), held the trial judge did not err in admitting the handgun found in the defendant's car the day he was arrested for capital murder with the underlying felony of robbery, even though "the State never argued that the gun was used in the commission of the crime[.]" Similarly, in Lee v. State , 944 So.2d 56, 62 (Miss. Ct. App. 2005), the Mississippi Court of Appeals held the trial judge did not abuse his "great deal of discretion" when he admitted, in a statutory-rape case, a sex toy and a thong found in the defendant's home, because the items "were part of the complete story of these crimes." Id.

¶ 43. Here, the trial judge found the contents of the bag Blake brought to Robert's grandmother's house that day were near enough in time and place to be part of the complete story of the crime. Thus, they have probative value, even though the State never claimed Blake used the gel and gloves in the sexual battery. Wilkins , 264 So.2d at 413-14 ; Lee , 944 So.2d at 62. The fact Blake packed a tube of warming gel lubricant and latex gloves for a family barbeque he knew children would attend certainly goes to the relevant question of Blake's intent that day. Wilkins , 264 So.2d at 413. Indeed, this evidentiary scenario is similar to admitting digital scales found in a backpack left behind by a drug trafficker at the scene of a drug deal or burglary tools found in the car of a man caught breaking into a nearby house. In short, this decision fell within the judge's sound discretion, which he did not abuse.

¶ 44. That same discretion applies to the judge's decision not to exclude this admissible evidence based on Blake's Rule 403 argument. Rule 403"does not mandate exclusion but rather provides that the evidence may be excluded." Jones v. State , 904 So.2d 149, 152 (Miss. 2005) (emphasis in original). "Where a trial court determines that potentially prejudicial evidence possesses sufficient probative value, it is within that court's sound discretion whether or not to admit same." Id. While Blake complains the lubricant and gloves were unfairly prejudicial because they "invited the jury to speculate that Blake actually penetrated [Robert's] anal opening," the jury did not have to engage in speculation to reach the conclusion Blake inserted his finger in Robert's anus. There was ample direct and vivid testimony to support its verdict. So the admission was not error. And, even if it was, based on the overwhelming evidence of Blake's guilt, it was at most harmless.

¶ 45. Therefore, we affirm.

¶ 46. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., COLEMAN, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J.

¶ 47. The warming gel and latex gloves allowed into evidence are irrelevant, more prejudicial than probative, and their admission was not harmless error. Accordingly, I respectfully dissent.

¶ 48. At trial, the State introduced the contents of Blake's bag/backpack. In particular, the State wanted to introduce warming gel (Warm Touch Warming Jelly) and latex gloves found inside the bag. Blake objected vigorously to the relevance of these objects. Blake noted that not a single witness could tie the bag to the crime, stating that

not a single witness will testify that they saw Mr. Blake access that bag other than bring the bag over with him when he came to the residence. Not a single witness will testify that he removed anything from that bag prior to the incident in question. But the proof will show that he brought the bag over, never went inside that bag.

Blake argued that "no one will even testify that Mr. Blake had even opened the bag while he was there." He maintained that engaging in speculation about the gel is prejudicial, and that the gel has no probative value. Blake argued that he carried that bag and sold things out of it. The State argued that the gel was relevant under Rule 404(b) to establish motive, intent, and opportunity. It argued that an internet search by the State indicated that the gel is used for "sexual means" and that it was used as part of an intent, plan, or scheme to engage in sexual battery. It also argued that the item "was in the same room with the child." The State maintained that the gel was relevant and that the probative value trumped any prejudicial effect, "[e]specially, given the fact that we're trying a sexual abuse of a vulnerable individual, a child."

¶ 49. Sergeant Starks testified before the judge about the preliminary evidentiary issues. He testified that during his interview with Blake, Blake mentioned that he had left a bag at the house, that he had not received it back, and that he wanted it back. Blake mentioned that the bag contained his merchandise. Sergeant Starks asked that Robert's uncle bring the bag to him. Robert's uncle gave Sergeant Starks the bag outside the presence of Blake, so Sergeant Starks took the bag to Blake and opened it in Blake's presence in order to document its contents because he did not want Blake to accuse him of taking something. He stated that he was not searching for evidence, but when he located the warming gel on the top, he took it for evidence. Sergeant Stark stated that he did not have any evidence to connect the gel to the allegations in the indictment.

¶ 50. The court found that the gel was admissible under Rule 404(b) as evidence of motive, opportunity, intent, preparation, plan, and knowledge, and that it was more probative than prejudicial.

¶ 51. In the presence of the jury, the State asked Sergeant Starks if he was familiar with toothpaste. The following exchange occurred:

Q. Does toothpaste come in a container?
A. Yes, sir. Toothpaste comes in tubes or it comes in cylinders, of course, long cylinders also, but it all - most of the ones I get come in tubes.
Q. Does it come in a box, as well?
A. Yes, sir.
Q. Was this contained in a box even though it was not toothpaste?
A. No, sir, it was not in the box.

The State did not adduce any evidence that this warming gel is normally packaged in a box. Sergeant Starks testified that he did not check the tube to see if it had been opened. The photograph of the tube does not indicate any depressions that would indicate use. The actual tube, which was admitted into evidence, has been retained at the circuit court. The photographs also showed several unpackaged latex gloves (at least ten). No witness testified that those gloves appeared to have been used.

¶ 52. The bag did not appear in any of Sergeant Starks's many photographs of the home taken the night of September 3, 2012. Sergeant Stark testified that, during his investigation of the house, he did not find any warming gel or latex gloves. He stated that the seat alleged to be the scene of the crime did not appear to be out of order or to have any liquids or foreign substances on it. Robert's mother testified that she never saw Blake bring the bag in the home, and that she only found out about the bag afterward. His uncle's partner testified that Blake had the bag when he arrived. His sister testified that Blake arrived with the bag and placed it in the front room. No witness testified that Blake moved or touched the bag after entering the house.

¶ 53. During closing arguments, the State mentioned the gel, stating that "what makes its [sic] even more telling is this man shows up with a book bag and in that book bag are latex gloves and jelly." Blake's argument primarily focused on the existence of reasonable doubt as to the element of penetration.

¶ 54. The trial court found (and the State argued at trial) that the gel and gloves were admissible under Rule 404(b) to show motive, intent, knowledge, and plan. Yet, Rule 404(b) governs evidence of "other crimes, wrongs, or acts." Miss. R. Evid. 404(b). The State did not demonstrate that the gel and gloves were evidence of "other crimes, wrongs, or acts," so Rule 404(b) is inapposite and inapplicable, and the trial court erred in utilizing it to admit the evidence. The State appears to have abandoned the Rule 404(b) argument on appeal, and argues that the evidence was otherwise admissible.

¶ 55. Rule 401 provides that evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence" and that fact "is of consequence in determining the case." Miss. R. Evid. 401. "[E]vidence may be introduced as part of the res gestae of a crime if it was an inseparable part of the entire transaction." Collins v. State , 513 So.2d 877, 879 (Miss. 1987) (footnote omitted). This Court has also noted that evidence regarding the scene of the crime and objects found at the scene, "if relevant , are admissible in evidence if not remote in time and place." Wilkins v. State , 264, So.2d 411, 413 (Miss. 1972) (emphasis added). "In an effort to determine the intent of the person charged with [a] crime, it is permissible to show the surrounding circumstances and physical objects used or useful in the commission of a crime." Id. The majority claims that the bag and its contents are part of the res gestae of the crime and are relevant to intent. Rule 401 states that evidence must make a fact more or less probable . The speculative "intent" the warming gel purports to show is no more likely than any other motive, such as: he was planning on selling the gel as merchandise (it was contained in his merchandise bag), he was planning a rendezvous with an adult later, he carried it in case of a chance encounter with an adult, part of his body had chafing problems and he used the gel to lubricate, or many other possible uses that are just as likely, if not more likely, than the intent to commit sexual battery. The majority problematically states that "[t]he fact Blake packed a tube of warming gel lubricant and latex gloves for a family barbeque he knew children would attend certainly goes to the relevant question of Blake's intent that day." Maj. Op. ¶ 43. First, this statement assumes facts not contained in the record: nothing in the record indicates when Blake packed the gel and gloves or why, or that he packed them for the barbeque; rather, the record indicates that he always carried this bag and that it contained merchandise that he sold. Second, such a sweeping statement regarding what sort of evidence is probative of intent places every person who carries a condom under suspicion of intent to commit a sexual crime. Not every remote item that might indicate sexual activity is probative of evidence of a crime.

¶ 56. The evidence shows only that, at some point on the day of the incident, Blake's bag was on the property. No witness testified that on the day of the crime they saw the contents of the bag, which tended to contain his "merchandise." No evidence exists that the bag or anything in it was used during the crime. No evidence placed the bag in the same room as the crime during the crime. The evidence reveals only that the bag, with unknown contents, was somewhere on the property where the crime occurred sometime on the day of the crime. The same bag was given to Sergeant Starks, closed, the day after the occurrence.

¶ 57. In Collins , Collins was convicted of sexual battery. Collins , 513 So.2d at 877. The evidence from both Collins and the victim indicated that, immediately prior to the incident, Collins showed the minor victim and her friend one specific pornographic magazine. Id. at 878. The specific magazine used prior to the crime was identified. Id. During a search of the shed in which the crime occurred, police located six pornographic magazines: the one used during the incident and five others. Id. The trial court allowed all six magazines to be admitted into evidence, and the State argued that all six were probative of Collins's lustful motives and his plan for sexual gratification via the alleged battery. Id. This Court found that the five magazines not used as part of the crime were not relevant. Id. at 879. It noted that "[t]here is no evidence in the record linking the five additional magazines with the alleged sexual battery ...." Id. It noted that "[t]he only connection between the five magazines and the alleged crime is that the desk in which the magazines were stored was located inside the shed in which the alleged crime occurred." Id. It therefore found that the magazines were not probative of any element of the alleged crime, nor were they part of the res gestae . Id. The Court held that the nature of the magazines was highly inflammatory and the sole function was to inflame the jury, thus their admission into evidence was unfairly prejudicial to the defendant. Id.

¶ 58. Similarly, in Wade v. State , Wade was convicted of sexual battery. Wade v. State , 583 So.2d 965, 966 (Miss. 1991). Prior to the alleged battery, which occurred in Wade's vehicle, he showed the victim a pornographic "book." Id. When police officers searched the vehicle, they found a bag of pornographic photographs under the seat, which was admitted into evidence. Id. The victim testified that Wade did not show her photographs in a bag, he showed her photographs in a book. Id. This Court held that the bag of photographs was not relevant to the sexual battery nor to the res gestae of the crime because the children did not see the bag. Id. at 967. It found that the nature of the photos was inflammatory and that Wade was prejudiced by the admission of the bag of photographs. Id.

¶ 59. The majority finds that the gel and gloves are relevant as objects useful in the commission of sexual battery, relying on Wilkins . First, whether gel and gloves are useful in the commission of sexual battery invites rampant speculation, undermining the relevance of the objects. Second, Wilkins states that such objects "found at the scene " must not be remote in time and place. Wilkins , 264 So.2d at 413 (emphasis added). The gel and gloves were not located during Sergeant Starks's investigation of the property at which the alleged crime occurred, and were not found at the scene. They were brought to him in a closed bag by a relative of the victim the next day. Furthermore, no witness testified as to the location of the objects during the crime, or immediately prior to or subsequent to the crime. The discovery of the objects was remote to both the time and place of the alleged battery. Therefore, the trial court abused its discretion in finding that the gel and gloves were relevant.

¶ 60. Even if the gel and gloves are relevant, they are more prejudicial than probative. Rule 403 provides that relevant evidence may be excluded if the probative value is substantially outweighed by the danger of unfair prejudice. Miss. R. Evid. 403. Given that no evidence connected the gel and gloves to the alleged battery, any probative value of the objects is negligible. The State implied that these objects were sexual in nature, which invited rampant speculation and could easily inflame the jury, especially in a child sexual abuse case. See White v. State , 228 So.3d 893 (Miss. Ct. App. 2017).

¶ 61. The majority finds that the admission of this evidence was harmless because the evidence against Blake is "overwhelming." While I agree that the evidence is overwhelming that Blake did something untoward to Robert, the evidence of penetration is not overwhelming. Robert's testimony regarding whether Blake touched the outside of buttocks or penetrated his anus was unclear. He testified that Blake was "digging in his butt" and also that he told the forensic interviewer that Blake touched him "on" his buttocks. The forensic interviewer testified that Robert's initial disclosure was that Blake had touched Robert "on" his buttocks. Robert did not mentioned that Blake touched him inside his buttocks. Only after the interviewer asked clarifying questions did Robert state that Blake touched him inside his buttocks. The forensic interviewer's testimony regarding what Robert told her thus indicated that he used both "on" and "in," and that he had used "in" only after she asked follow-up questions. None of the witnesses testified that they saw actual penetration.

¶ 62. It is not clear beyond a reasonable doubt that, without the inflammatory evidence of the gel and the gloves, the jury would have found that penetration occurred.

The gel and gloves appear to have been introduced to inflame the jury, and their admission into evidence invited rampant speculation, because they had no connection to the alleged battery. Therefore, the trial court abused its discretion by admitting these objects into evidence, and that error prejudiced Blake. I would reverse his conviction and remand the case to the trial court for further proceedings.

KITCHENS, P.J., JOINS THIS OPINION.

      We have substituted a fictitious name for the child victim.

      See infra Discussion § II.

      The Queen's Case (1820) 129 Eng. Rep. 976; 2 Br. & B. 284 (HL) (before statement is proved, witness must be asked on cross-examination whether he made it; if he admits it, proof becomes unnecessary and witness can explain; if he denies it, attacking party can "contradict and falsify" by extrinsic evidence).

      The common law "confront first, then admit or deny" mandate, while recognized for some time in Mississippi, is not grounded in either Mississippi Rule of Evidence 613(b) or its federal equivalent. Indeed, the Advisory Committee Note to Rule 613 emphasizes that the confrontation rule from the The Queen's Case is now abolished in Britain and in federal courts, though it "lingered" for some time in Mississippi. There is no mandate as to when the extrinsic evidence may be admitted. The only requirements are that, at some point, the witness be given an opportunity to explain or deny the statement and that opposing counsel is given an opportunity to examine the witness about it. The Advisory Committee Note to Rule 613 explains the foundation requirement in The Queen's Case was modified:
      Subdivision (b) preserves the foundation requirement in The Queen's Case with some modifications when impeachment is by extrinsic evidence. The traditional insistence that the attention of the witness be directed to the statement on cross-examination is relaxed in favor of simply providing the witness an opportunity to explain and the opposite party an opportunity to examine the statement, with no specification of any particular time or sequence.
      Miss. R. Evid. 613(b) advisory committee note (emphasis added).

      Rule 613(b) expressly provides:
      Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party's statement under Rule 801(d)(2).

      I also take issue with the majority's analysis regarding the prior statement of the mother. I agree with the majority's conclusion that the prior statement was not inconsistent, thus the trial court did not err in declining to recall Officer Stark. However, the majority makes a leap from the facts in the record and opines that Blake's "true intent" was to impeach the testimony of the child witnesses. Such a leap requires many assumptions and is unnecessary to the ultimate conclusion. I disagree with this assumption made by the majority.

      The trial court also specifically asked Sergeant Starks: "did [Blake] acknowledge or deny any of those items as being his?" Sergeant Starks replied: "He did not deny that those items were his." Relying on the lack of a denial that the objects were Blake's to determine admissibility may implicate Fifth Amendment concerns.

      Wade testified that the children found a "book," and the children testified that Wade showed them a "book." Id.


source: Caselaw Access Project

author: BEAM, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    John M. TERRY, Jr. v. OBY T. ROGERS, PLLC
    NO. 2017-CP-00180-SCT
    Supreme Court of Mississippi.
    November 15, 2018
    ATTORNEY FOR APPELLANT: JOHN M. TERRY, JR. (PRO SE)
    ATTORNEYS FOR APPELLEE: J. WYATT HAZARD, JACKSON, RICHARD BENJAMIN McMURTRAY, MATTHEW WYATT WALTON
    BEFORE KITCHENS, P.J., BEAM AND CHAMBERLIN, JJ.
   BEAM, JUSTICE, FOR THE COURT:

¶ 1. John Terry sued his former court-appointed attorney Oby Rogers in the Covington County Circuit Court, claiming fraud, legal malpractice, and violation of his civil rights under 42 U.S.C. § 1983. The trial court granted Rogers's motion for summary judgment on all claims and held that the Mississippi Tort Claims Act (MTCA) was applicable because Rogers was an "employee" for the purposes of the MTCA. We affirm the trial court's order granting Rogers's motion for summary judgment.

PROCEDURAL HISTORY

¶ 2. On December 3, 2013, Terry, proceeding pro se , filed a one-page civil complaint against Rogers claiming Rogers had actively worked against him while serving as Terry's court-appointed attorney by "willfully and corruptly falsely affirming in sworn documents to [Terry's] guilt to felony charges." Terry claimed, "Said affirmations are completely false and brought about by deceit and forgery[,]" and "Rogers breached his fiduciary responsibility to [Terry], thereby committing legal malpractice." Terry claimed he sat in the Covington County Jail from September 20, 2012, to October 31, 2012, "on no charges," while Rogers "should have been working to get him released." Terry claimed that Rogers instead tried to get Terry to "recant" his "actual court accepted, and adjudicated plea."

¶ 3. Shortly after providing deposition testimony in the matter, Terry filed an amended complaint on December 10, 2015. Terry alleged that Rogers was liable under § 1983 for becoming "an agent for the District Attorney's Office." Terry claimed Rogers "became complicit in an effort to get Terry to bend to the will of the prosecution by causing [Terry] to be falsely imprisoned until Terry relented and disavowed his court adjudicated [guilty] plea."

¶ 4. Terry stated in the amended complaint that Rogers's actions "were not that of negligent counsel but of a malicious character, who under the color of [law, while] providing Terry indigent counsel, was actually advocating the role of prosecutor."

¶ 5. In the amended complaint, Terry claimed that, on March 14, 2012, officers from the Covington County Sheriff's Department arrested him and his girlfriend at Terry's home. Officers had found seventeen marijuana plants, grow lights, and fertilizer in the home. Terry was charged with possession of marijuana with intent to manufacture. Terry's girlfriend was also charged.

¶ 6. At a July 2012 hearing, the Covington County Circuit Court appointed Rogers to represent Terry. During the hearing, Terry's bond was reduced to $50,000. Terry never posted bond and remained in jail. Terry stated in his deposition that the bond initially was $155,000, "on different charges."

¶ 7. According to Terry, Rogers's assistant, Stacy Shoemake visited Terry in the Covington County Jail on September 17, 2012. Shoemake presented Terry with a plea petition agreement "that had been negotiated between Mr. Terry and the District Attorney's Office." Shoemake told Terry to read the petition and to make sure that he understood what everything meant.

¶ 8. Terry claims that after he reviewed the petition, he pointed out to Shoemake that the handwritten charges did not match his indictment. The plea petition simply read, "possession of 6.2 grams of marijuana," and it failed to include the language "with intent to manufacture," as set forth in the indictment. Terry claims that Shoemake told him to go ahead and sign the petition and assured him they would "fix" the language later.

¶ 9. Terry says he appeared with Rogers at the Simpson County Courthouse on September 20, 2012, for a plea-petition hearing. During the hearing, the trial court asked Terry if he intended to plead guilty to "possession of 6.2 grams of marijuana w/intent to manufacture." Terry responded, "Yes."

¶ 10. According to Terry, Rogers interrupted at that point and said, "No, sir, I don't believe that is correct, Your Honor. I believe he is just pleading to possession of a controlled - - Schedule I substance." The judge then "inquired of the prosecution's position, to which the prosecutor asked the [c]ourt's indulgence for a moment."

¶ 11. At that point, the judge said to Rogers, "From your plea offer it looks like a straight possession." The prosecutor then spoke up and said, "We can do them straight possession."

¶ 12. According to Terry, the prosecutor said, "Your Honor, the State would make a motion ore tenus to amend the indictment to drop the intent portion of the indictment." The judge asked Terry if it was his intention to plead guilty to simple possession. Terry says he replied in the affirmative. The court accepted the amended plea agreement and Terry was convicted of "misdemeanor" possession.

¶ 13. Terry claims the judge "mistakenly failed to adjust the sentence to the pleading, and sentenced [Terry] to a term of three years in the [custody] of the Mississippi Department of Corrections, said sentence suspended, and defendant placed on three years supervised probation."

¶ 14. Terry says that after the September 20 hearing, all restraints were removed from him, and he was set up with a probation officer. Terry was then "asked by an Officer who escorted him to the courthouse if he needed a ride back to Covington County." Terry said yes, and he "rode back with two Officers of the Covington County Sheriff's Department."

¶ 15. According to Terry, a few hours later, "the District Attorney's Office became dissatisfied with the plea agreement and encouraged Rogers to try to talk [Terry] into disavowing his actual court accepted and adjudicated plea, and [to] plead guilty to felony charges."

¶ 16. Terry claims he was then summoned to Rogers's law office where he was "presented with a typed affidavit that he was encouraged to sign, disavowing his actual court accepted and adjudicated plea, and agree[ing] to amend the plea to 'possession of 6.2 grams of marijuana with intent.' " Terry refused and said that, "while it was initially his intention to plead guilty [to] 'possession w/intent, his intentions changed when the prosecution amended the indictment.' " According to Terry, he was "detained by a Covington County Sheriff's Officer" while standing in Rogers's office.

¶ 17. Terry claims that the next day, on September 21, 2012, "while being held in Covington County Jail without charge," Rogers and Shoemake visited Terry at the jail. And "in what appears to have been an effort to please the District Attorney's Office, [they] tried to persuade Terry to sign an affidavit disavowing his actual court accepted and adjudicated plea, and instead plead guilty to felony charges." Rogers informed Terry that if Terry refused to sign the affidavit, the district attorney's office would prosecute Terry's girlfriend. Terry refused.

¶ 18. Terry claims he told Rogers that "the prosecution made the mistake by amending the indictment and the [c]ourt should amend the sentence to correspond to the charges." As Terry "understood it," no warrant had been issued for his arrest, "and all charges related to the 6.2 grams of marijuana had been duly adjudicated"; therefore, Terry was being held without charge and he needed Rogers's assistance.

¶ 19. Terry says Rogers became irate and stormed out of the Covington County Jail after Terry's second refusal to sign a sworn affidavit to disavow the court-adjudicated plea.

¶ 20. Terry claims he sat in the Covington County Jail "from September 20, 2012, to October 31, 2012, on no charges." On October 31, 2012, Terry was taken to the Smith County Courthouse where he met with Rogers. There, Rogers informed Terry that he was going to request that the court allow him to withdraw as Terry's counsel. According to Terry, Rogers told him that a conflict of interest had arisen because Rogers was also representing Terry's girlfriend.

¶ 21. Terry claims that the judge before whom he appeared on October 31 was the same judge who had presided over Terry's plea-petition hearing on September 20. Terry says the October 31 hearing was the first time the judge became aware of the "unlawful sentence" he had "mistakenly handed down." The judge "was also made aware at that time that Terry had spent the last forty days in the Covington County Jail after having his plea adjudicated in his courtroom." Terry says he was "freed on October 31, 2012, with instruction to be present at the Covington County Courthouse on January 25, 2013."

¶ 22. According to Terry's complaint, "unbeknownst to [Terry at the time,] the day before Rogers asked to be recused from his duties[,] 'under color of the law,' [Rogers] had filed a Plea Petition Agreement in the Covington County Courthouse, supposedly on behalf of Terry."

¶ 23. Terry claims he became aware of the plea petition while at Rogers's law office on December 4, 2012. Terry says Rogers had invited him to his office to meet Regnal Blackledge, the attorney Rogers had personally recommended to him at the October 31 hearing to take Rogers's place as Terry's counsel.

¶ 24. In March 2016, Rogers filed a motion for summary judgment claiming that Terry's claims were barred by the applicable statute of limitations and the " Heck doctrine" espoused in Heck v. Humphrey , 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Rogers further asserted that the State had a right to incarcerate Terry between the time of the plea hearing and the time Terry was sentenced; that Terry's claims are barred under judicial immunity as set forth in the MTCA; and that Terry had failed to designate an expert to opine that Rogers had breached any duty owed to Terry.

¶ 25. The trial court granted summary judgment in favor of Rogers, finding that Rogers, who had been appointed to represent Terry as a public defender, was an employee of Covington County. Accordingly, the trial court held that the MTCA applied. The trial court found, however, that Terry had failed to comply with the notice requirements of Mississippi Code Section 11-46-11 (Rev. 2012), invalidated on other grounds by University of Mississippi Medical Center v. Robinson , 876 So.2d 337 (Miss. 2004). As a result, the trial court found that Terry's claims were barred by the MTCA's one-year statute of limitations.

¶ 26. The trial court found also that Terry's § 1983 claim failed as a matter of law. The trial court noted that the Heck Court had held the following:

[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.

Heck , 512 U.S. at 487, 114 S.Ct. 2364. The trial court found that Terry had failed to show that his conviction and sentence had been reversed or otherwise expunged or invalidated.

¶ 27. The trial court further found that under Polk County v. Dodson , 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981), Rogers could not be considered a state actor for purposes of § 1983. Terry stipulated through "Responses to Itemization of Undisputed Facts" that Rogers was acting in the course and scope of his employment as county public defender at the time of the alleged acts about which Terry complains. The trial court noted that, in Dodson , the United States Supreme Court had found that "a public defender does not act under color of the state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding." Dodson , 454 U.S. at 325, 102 S.Ct. 445.

¶ 28. Lastly, the trial court observed that Terry purported to assert a claim of fraud. Terry claimed that the plea agreement which he signed was different than the plea agreement that was filed. Terry claims Rogers's assistant switched certain pages of the plea agreement that Terry actually signed. The trial court noted that a plaintiff must prove fraud by clear and convincing evidence and found that, based on the record, Terry was unable to do so.

¶ 29. Terry filed a notice of appeal and, at that point, sought to designate the record to include as a partial transcript of the September 20, 2012, plea proceeding and a full transcript of the October 31, 2012, proceeding.

¶ 30. Rogers filed a motion objecting to Terry's designation of the record to the extent it sought to include these documents. Rogers claimed that, prior to Terry's designation of the record, the transcripts had not been part of the record. The trial court granted Rogers's motion.

DISCUSSION

¶ 31. This Court reviews a trial court's grant or denial of a motion for summary judgment under a de novo standard. Copiah Cty. v. Oliver , 51 So.3d 205, 207 (Miss. 2011). Summary judgment is proper if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Miss. R. Civ. P. 56(c).

Fraud

¶ 32. We find no triable issue with regard to Terry's fraud claim. As the trial court found, Terry is unable to prove fraud.

¶ 33. Fraud must be proven by clear and convincing evidence. Martin v. Winfield , 455 So.2d 762, 764 (Miss. 1984) ("Proving fraud is difficult; as it ought to be. Clear and convincing evidence is required.").

The elements of fraud are
(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker's knowledge of its falsity or ignorance of its truth, (5) [the speaker's] intent that it should be acted upon by the person and in the manner reasonably contemplated, (6) the hearers's ignorance of its falsity, (7) his [or her] reliance on its truth, (8) his [or her] right to rely thereon, and (9) [ ] consequent and proximate injury.

Id. (citations omitted).

¶ 34. Accepting Terry's version of events as true, Terry cannot demonstrate that what the plea petition represents is false. Terry admitted that, he intended to sign a plea petition that corresponded to what had been charged in his indictment: possession of marijuana with intent to manufacture. Terry knowingly and willingly signed the plea petition with the understanding that it would be corrected to include the language "with intent." Therefore, the plea petition represents the truth of the matter.

¶ 35. Also, the plea petition and its filing are immaterial to the harm Terry claims he suffered by the alleged unlawful confinement from September 20 to October 31. The plea petition and its filing did not bring about Terry's confinement. As Terry acknowledges, the petition was filed on October 30, the day before the October 31 hearing, at which point Terry was released from jail.

¶ 36. Alternatively, Terry claims the information contained in the plea petition is harmful and prejudicial to him because it "now resides in the Covington County Courthouse, open to public scrutiny."

¶ 37. We fail to see how the presence of Terry's plea petition in the Covington County Courthouse is harmful since his plea hearing was also open "to public scrutiny" and since Terry admittedly told the judge at that hearing that he intended to plea guilty to possession of marijuana with intent to manufacture. Accordingly, based upon his own account, Terry cannot demonstrate any proximate harm that resulted from the plea petition and its filing.

¶ 38. For these reasons, we find the trial court was correct in granting summary judgment on Terry's fraud claim.

Section 1983 Claim

¶ 39. As the trial court noted, in order to recover damages for an unconstitutional conviction or imprisonment, a § 1983 plaintiff must prove that the conviction or sentence has been either reversed, expunged, declared invalid, or called into question by issuance of a writ of habeas corpus. Heck , 512 U.S. at 487, 114 S.Ct. 2364.

¶ 40. In Heck , the plaintiff, a convicted and incarcerated felon, had filed a § 1983 claim against prosecutors and law enforcement officers involved in his case, claiming they had deliberately destroyed exculpatory evidence in order to convict him. Id. at 479, 114 S.Ct. 2364. The Supreme Court analogized the plaintiff's § 1983 claim to a common-law tort claim for malicious prosecution, concluding that a necessary element for such a claim is that legal proceedings have been resolved in favor of the accused. Id. at 484, 114 S.Ct. 2364. The Heck Court referred to this element as the "favorable[-]termination requirement." Id. n.4.

¶ 41. Heck reasoned that, without a such requirement, § 1983 litigation would allow a collateral attack upon the legality of a conviction by the plaintiff's seeking money damages through a civil suit rather than proceeding through the proper channel of habeas corpus proceedings. Id. at 484-85, 114 S.Ct. 2364. If the plaintiff were successful in the civil suit, the judicial system would be faced with conflicting and irreconcilable outcomes arising out of the same event. Id. at 484, 114 S.Ct. 2364. Thus, Heck held that a claim for damages bearing a relationship to a conviction or sentence that has not been invalidated is not cognizable under § 1983. Id. at 487, 114 S.Ct. 2364.

¶ 42. Heck then instructed,

[W]hen a state prisoner seeks damages in a [§] 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.

Id.

¶ 43. Notably, the circumstances in Heck are different from this case. There, the plaintiff was still incarcerated when he filed his filed his § 1983 claim. Here, Terry was no longer incarcerated when he filed his § 1983 claim. But Heck considered this circumstance as well, stating, "We think the principle barring collateral attacks-a longstanding and deeply rooted feature of both the common law and our own jurisprudence-is not rendered inapplicable by the fortuity that a convicted criminal is no longer incarcerated." Id. at 490 n.10, 114 S.Ct. 2364.

¶ 44. As instructed by Heck , if the trial court had properly found that Heck 's favorable-termination requirement had not been met in this instance, then the trial court should have dismissed Terry's § 1983 claim without prejudice instead of proceeding to address it on the merits under Dodson . See Heck , 512 U.S. at 479, 487, 114 S.Ct. 2364.

¶ 45. But we do not find that the Heck bar applies here. Based upon our review of the record, the parties do not dispute that Terry's three-year felony sentence for possession of marijuana was amended to correspond with Terry's guilty plea to simple possession and that Terry was then ordered to pay a $250 fine. See Miss. Code Ann. § 41-29-139(c)(2)(A) (Rev. 2009). This constitutes a favorable termination under Heck and thus allows review of the merits of Terry's § 1983 claim under Dodson . Accordingly, the trial court did not err in addressing the merits of Terry's § 1983 claim.

¶ 46. As the trial court noted, a public defender does not act under color of state law in the normal course of his or her representation of a criminal defendant, even if counsel is liable for malpractice under state law. Dodson , 454 U.S. at 324-25, 102 S.Ct. 445. But the Supreme Court has also held that public defenders are not immune from liability under § 1983 for "intentional misconduct, 'under color of' state law, by virtue of alleged conspiratorial action with state officials that deprives their clients of federal rights." Tower v. Glover , 467 U.S. 914, 923, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984) ; see also Dennis v. Sparks , 449 U.S. 24, 27-28, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980) (holding that an otherwise private person acts under color of state law when engaged in a conspiracy with state officials to deprive another of federal rights).

¶ 47. Here, Terry contends Rogers engaged in intentional conduct in violation of § 1983 by actively working against him by "willfully" affirming a false, sworn document, i.e., Terry's plea petition. But as discussed above, Terry's plea petition was not false.

¶ 48. Again, Terry admits that he intended to plead guilty to possession "with intent." Terry signed a plea petition with the understanding the document would be corrected to so reflect, and he subsequently told the trial court that he intended to plead guilty to possession with intent. The plea petition represents the truth of the matter, and Terry cannot demonstrate that the petition's filing constituted intentional misconduct designed to deprive Terry of his constitutional rights.

¶ 49. Accordingly, we find the trial court correctly denied Terry's § 1983 claim under Dodson .

Legal-Malpractice Claim

¶ 50. While Terry's complaint alleged legal malpractice against Rogers, Terry expressly disavowed any such claim later in the proceedings. As the trial court found, Terry stated in his response to Rogers's motion for summary judgment that he was proceeding solely under § 1983. And Terry confirmed at the summary judgment hearing that he was pursuing only the § 1983 claim.

¶ 51. Accordingly, we find that Terry has abandoned any legal-malpractice claim articulated in his pleadings. Thus, we need not reach the trial court's findings about the MTCA.

¶ 52. Lastly, we are not unsympathetic to Terry's position as a pro se litigant who unadvisedly placed all his eggs in the wrong legal basket. Nonetheless, pro se litigants in civil cases are "held to the same rules of procedure and substantive law as represented parties." Ivy v. Merchant , 666 So.2d 445, 449 (Miss. 1995).

¶ 53. For these reasons, we must affirm the trial court's grant of summary judgment in favor of Rogers.

CONCLUSION

¶ 54. The circuit court's order granting summary judgment in favor of Rogers is affirmed.

¶ 55. AFFIRMED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, MAXWELL, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      The record does not indicate what crime Terry's girlfriend was charged with.

      Shoemake stated in an affidavit that Terry is incorrect that the plea-petition form he signed failed to include the "with intent" language. Shoemake also stated that, had the language not been included or had it needed to be changed, she would have made the change then.


author: BRYAN, Justice.

text:
    EX PARTE Cheryl PRICE and Greg Lovelace
    (In re Marcus Parrish v. Jefferson Dunn et al.)
    1160956
    Supreme Court of Alabama.
    January 12, 2018
    Steve Marshall, atty. gen., and Andrew Brasher, deputy atty. gen., and Anne Adams Hill, gen. counsel, and Mary-Coleman Robertson, asst. atty. gen., Alabama Department of Corrections, for petitioners.
    H. Gregory Harp, Trussville, for respondents.
   BRYAN, Justice.

Cheryl Price and Greg Lovelace, two of the defendants below, petition this Court for a writ of mandamus directing the trial court to enter a summary judgment in their favor on the ground of State-agent immunity. We grant the petition and issue the writ.

Price was formerly the warden at Donaldson Correctional Facility ("the prison"), which is operated by the Alabama Department of Corrections ("the DOC"). Lovelace is a deputy commissioner of the DOC in charge of construction and maintenance. The plaintiff, Marcus Parrish, is a correctional officer employed by the DOC. The evidence, viewed in the light most favorable to Parrish, the nonmovant, see Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala. 1993), reveals the following facts. Parrish was supervising inmate showers in a segregation unit in the prison. Parrish left the shower area briefly to retrieve shaving trimmers, and, when he returned, inmate Rashad Byers had already entered a shower cell, which had an exterior lock on it. Byers indicated that he was finished with his shower, and Parrish told him to turn around to be handcuffed. Parrish then approached Byers's shower door with the key to the lock on the door in his hand. Parrish was getting ready to unlock the shower door when Byers unexpectedly opened the door, exited the shower cell, and attacked Parrish. During the attack, Byers took Parrish's baton from him and began striking Parrish with it. Parrish was knocked unconscious, and he sustained injuries to his head.

Parrish sued Price and Lovelace in their official capacities. Parrish later filed an amended complaint naming Price and Lovelace as defendants in their individual capacities only. Thus, it appears that Price and Lovelace are now being sued only in their individual capacities. Parrish also sued other defendants, but those claims are not relevant to this petition. Parrish's allegations concern the cell-door locks and staffing at the prison. Parrish alleged that many of the locks at the prison were defective, which allowed prisoners to open supposedly locked doors, and that the prison was understaffed with correctional officers. Parrish alleged that Price and Lovelace willfully breached their duties by failing to monitor the prison for unsafe conditions and by failing to repair or replace the allegedly defective locks. The complaint further alleged that Price willfully breached a duty by failing to remedy the alleged understaffing at the prison. Although the allegations concern both faulty locks and understaffing, it appears that the primary allegation concerns the locks; Parrish does not mention the alleged understaffing in his brief to this Court.

Price and Lovelace moved for a summary judgment, asserting, among other things, that they are entitled to State-agent immunity. Price and Lovelace supported their summary-judgment motion mainly with excerpts from their own depositions. In response, Parrish argued that Price and Lovelace are not entitled to State-agent immunity. Following a hearing, the trial court denied the summary-judgment motion. The trial court concluded, without elaboration, that genuine issues of material fact exist so as to preclude a summary judgment. Price and Lovelace then petitioned this Court for a writ of mandamus, arguing that they are immune from liability based on State-agent immunity.

Generally, the denial of a summary-judgment motion is not reviewable by a mandamus petition, but an exception to that general rule exists here. The denial of a summary-judgment motion grounded on a claim of immunity is reviewable by a mandamus petition. Ex parte Turner, 840 So.2d 132, 135 (Ala. 2002).

"A writ of mandamus is an extraordinary remedy, and it will be 'issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.' Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993)."

Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala. 1998).

Moreover,

"[i]n reviewing a trial court's ruling on a motion for a summary judgment, we apply the same standard the trial court applied initially in granting or denying the motion. Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala. 1999).
" 'The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present "substantial evidence" creating a genuine issue of material fact.'
" 742 So.2d at 184. '[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989)."

Swan v. City of Hueytown, 920 So.2d 1075, 1077-78 (Ala. 2005).

In Ex parte Cranman, 792 So.2d 392 (Ala. 2000) ( Cranman was a plurality decision, but a majority of this Court later adopted the Cranman standard in Ex parte Butts, 775 So.2d 173 (Ala. 2000) ), this Court restated the standard governing State-agent immunity:

"A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's
"(1) formulating plans, policies, or designs; or
"(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
"(a) making administrative adjudications;
"(b) allocating resources;
"(c) negotiating contracts;
"(d) hiring, firing, transferring, assigning, or supervising personnel; or
"(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
"(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers' arresting or attempting to arrest persons[, or serving as peace officers under circumstances entitling such officers to immunity pursuant to § 6-5-338(a), Ala. Code 1975]; or
"(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
"Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
"(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
"(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law."

792 So.2d at 405 (bracketed language is modification added by Hollis v. City of Brighton, 950 So.2d 300, 309 (Ala. 2006) ).

" 'This Court has established a "burden-shifting" process when a party raises the defense of State-agent immunity.' Ex parte Estate of Reynolds, 946 So.2d 450, 452 (Ala. 2006). A State agent asserting State-agent immunity 'bears the burden of demonstrating that the plaintiff's claims arise from a function that would entitle the State agent to immunity.' 946 So.2d at 452. Should the State agent make such a showing, the burden then shifts to the plaintiff to show that one of the two categories of exceptions to State-agent immunity recognized in Cranman is applicable."

Ex parte Kennedy, 992 So.2d 1276, 1282 (Ala. 2008).

The parties first dispute whether Price and Lovelace have met their burden of showing that Parrish's claims arise from a function that would entitle them to State-agent immunity. That is, the parties dispute whether Price and Lovelace have shown that they fall within any of the five categories of State-agent immunity listed in Cranman. Price and Lovelace contend on appeal, as they did below, that they qualify for State-agent immunity under multiple Cranman categories. Parrish argues that Price and Lovelace have failed to produce evidence establishing that they fall within any of the Cranman immunity categories.

In arguing that Price and Lovelace have failed to meet their evidentiary burden, Parrish relies primarily on Ex parte Wood, 852 So.2d 705 (Ala. 2002). In Wood, E.L. was a student at a juvenile-correctional facility operated by the Alabama Department of Youth Services ("the Department"). He sued Wood, the executive director of the Department, in his individual capacity. As executive director, Wood implemented the policies and procedures established by the Alabama Youth Services Board. E.L. alleged that, as a student at the facility, he was not provided the curriculum and course of study mandated by state law. Wood moved for a summary judgment, asserting that he was entitled to State-agent immunity, and he supported his motion with his own affidavit. The trial court denied the summary-judgment motion, and Wood petitioned this Court for a writ of mandamus.

This Court concluded that Wood had failed to meet his burden of establishing that E.L.'s claims arose from Wood's performance of a function that would entitle him to immunity under Cranman. The crucial factor was the insufficiency of Wood's affidavit. His affidavit stated, in relevant part:

" 'As Executive Director, I carry out the policy and procedure established by the Alabama Youth Services Board for the operation of the Department within the budget limitations established by the Legislature in the allocation of funds for the Department. I have reviewed the amended complaint filed by [E.L.] .... All of my responsibilities in connection with the issues identified in the complaint require the exercise of judgment and discretion in carrying out state policy. The issues involve only the following: administration of the Department, allocation of resources, hiring, firing, transferring, assigning, or supervising personnel, or otherwise exercising judgment in the discharge of my duties imposed by statute, rule[,] or regulation in counseling or releasing persons of unsound mind or educating students.' "

852 So.2d at 708.

The Court concluded that "Wood's affidavit simply recite[d] the rule of State-agent immunity restated in Cranman." 852 So.2d at 710. The Court noted that, "[a]lthough Wood's affidavit state[d] the issues in terms that would lead to the conclusion that he [fell] under the immunity from liability set forth in Cranman, Wood fail[ed] to provide any significant facts relating to his personal involvement in the actions giving rise to the claims asserted against him." Id. The Court in Wood continued:

"Wood's affidavit states in conclusory terms that his duties required him to exercise his judgment and discretion. He listed his duties, yet failed to state his involvement, or his adherence to a rule or regulation governing the exercise of his duties, in the actions underlying the claims asserted against him. Based on the materials before us, we hold that the evidence was insufficient to support a conclusion that Wood was entitled to State-agent immunity."

Wood, 852 So.2d at 711-12.

Parrish argues that Price and Lovelace, like Wood, have failed to present evidence establishing that they qualify for one of the Cranman immunity categories. However, for the reasons discussed below, we conclude that this case is not controlled by Wood and that Price and Lovelace met their burden under Cranman.

In arguing that she has State-agent immunity, Price emphasizes her limited testimony addressing her responsibilities as warden. Despite such limited testimony, Price, as a warden, fits into one of the Cranman immunity categories. Unlike the Court in Wood, we can make this determination without the benefit of more detailed testimony from the defendant. The Court in Cranman recognized the distinction "between conduct involved in planning or decision-making in the administration of government and the conduct of those required to carry out the orders of others or to administer the law with little choice as to when, where, how, or under what circumstances their acts are to be done." 792 So.2d at 402. As a warden, Price falls on the immunity side of that distinction. The assertions against Price regarding the allegedly defective locks and alleged understaffing generally concern Price's role in maintaining prison safety. Price testified that, as warden, she was responsible for the security of the prison, including the safety of the correctional officers. That broad responsibility would necessarily place Price in Cranman category two, which protects a State agent when "exercising ... judgment in the administration of a department or agency." In that regard, Price, as warden of the prison, is in a position similar to the police chief in Howard v. City of Atmore, 887 So.2d 201 (Ala. 2003). The police chief in Howard was "responsible for the 'day-to-day operations of the [police] department and the city jail.' " 887 So.2d at 209-10. This Court in Howard determined that "[t]hose activities fall squarely within category (2) of the Cranman formula." 887 So.2d at 210. We conclude that the same is true for Price with respect to all the allegations against her in this case.

Moreover, the materials before us contain additional evidence indicating that Price falls within a Cranman category of immunity regarding the allegation that she did not remedy the prison's allegedly defective locks (which appears to be the main allegation against her), although Price does not point to that evidence for that purpose. Price testified that she had received reports of some issues with the locks: locks in the infirmary had been opened by inmates, locks on the main riot gates had problems, and at least one lock in the old segregation unit was not operational. Price testified that, in response to those issues, the infirmary locks were changed, the locks on the main riot gate were added to a maintenance schedule so they could be serviced, and a hasp had been added to the door in the old segregation unit with the inoperable lock to keep that door secure. Regarding the locks in the prison's new, or main, segregation units, Price was asked if she recalled any correctional officers reporting that any locks in that area were inoperable. She answered: "Not inoperable, no. If they did not properly secure the doors, the inmates could jam those locks. So they would have to clean out those locks. And that became part of the policy." That policy regarding sabotaged locks was an unwritten policy that had been in place before Price became warden; Price continued the policy by discussing with the correctional officers during meetings the need to clean out locks. Price testified that she and other prison officials made the decision to discuss the unwritten policy with the correctional officers. Thus, unlike the situation in Wood, the materials before us do contain some specific facts concerning Price's personal involvement in actions underlying the claim asserted against her. Further, those facts establish that, with respect to the locks, Price continued a policy, entitling her to immunity under category one in Cranman, which provides immunity for a State agent when "formulating plans, policies, or designs," see Alabama Dep't of Corr. v. Thompson, 855 So.2d 1016, 1018-20 (Ala. 2003) (equating the continuation of a policy with the formulation of a policy), and category two, which broadly protects a State agent when the agent is "exercising ... judgment in the administration of a department or agency." 792 So.2d at 405.

We also conclude that Lovelace, the deputy commissioner of the DOC in charge of construction and maintenance, falls within certain categories of immunity in Cranman. Parrish alleges against Lovelace, as he did against Price, that Lovelace failed to remedy the allegedly defective locks in the prison (he does not appear to be alleging that Lovelace had anything to do with alleged understaffing). Lovelace's deposition testimony is quite sparse, and Parrish emphasizes that fact in arguing that Lovelace failed to carry his burden of establishing that he qualifies for immunity under a Cranman category. Lovelace testified that his responsibilities include renovations to and modifications of the DOC's facilities, including the prison. He stated that as deputy commissioner he probably visits the prison a couple of times a year on an as-needed basis. Lovelace testified that he is in charge of the DOC's central maintenance division, which supplements the maintenance work done at each of the DOC's facilities, helping the facility's staff on larger projects.

In suing Lovelace, a deputy commissioner for the DOC, for failing to remedy alleged faulty locks in the prison, Parrish reached fairly high up the DOC hierarchy. Parrish testified that he sued Lovelace because he is "in charge of the locks and taking care of the maintenance" and "he's the maintenance man that's over everything." Lovelace did testify that he is in charge of the entire central maintenance division of the DOC. Even more so than Price, Lovelace operates at the planning and decision-making level of government. The allegation leveled against him regarding the faulty locks in the prison appears necessarily to involve his judgment in the administration of the DOC. Thus, we conclude that Loveless qualifies for immunity under Cranman categories one and two.

Accordingly, Price and Lovelace met their burden of establishing that they fall under an immunity category in Cranman. The burden then shifted to Parrish to show, by substantial evidence, that one of the two exceptions to State-agent immunity recognized in Cranman applies. Parrish contends that he met that burden, but he does not explain which exception he believes is applicable. Although he does not explicitly say so in his brief, it appears that Parrish essentially argues that Price and Lovelace acted willfully and maliciously, either of which would disqualify them from State-agent immunity under the second exception in Cranman. We conclude, however, that there is no substantial evidence that Price or Lovelace acted willfully or maliciously.

" ' "Willfulness" is the conscious doing of some act or omission of some duty under knowledge of existing conditions accompanied with a design or purpose to inflict injury.' Instruction 29.01, Alabama Pattern Jury Instructions-Civil (2d ed. 1993); see also Roe v. Lewis, 416 So.2d 750, 754 (Ala. 1982) (willfulness 'denotes an intention to cause an injury'). Similarly, malice is defined as '[t]he intent, without justification or excuse, to commit a wrongful act....' Black's Law Dictionary, 968 (7th ed. 1999)."

Ex parte Nall, 879 So.2d 541, 546 (Ala. 2003) (concluding that two high-school baseball coaches were entitled to State-agent immunity).

In support of his argument that Price acted willfully or maliciously, Parrish cites his testimony stating that he informed Price that locks at the prison were inoperable. However, that evidence is not substantial evidence that Price acted willfully or maliciously. As noted, Price testified that measures were taken to remedy the inoperable locks, including her telling correctional officers to check for locks inmates had jammed. Even if some locks remained inoperable after those measures, there is no evidence indicating that Price intended to cause injury, which is necessary to establish willfulness or maliciousness. Regarding his allegations that the prison was understaffed, Parrish does not discuss any evidence indicating that Price acted willfully or maliciously, and there appears to be no evidence supporting that position in the materials before us. Regarding the allegation against Lovelace, Parrish does not cite any evidence that he argues shows willfulness or maliciousness, and there appears to be no evidence supporting such a position in the materials before us. In short, Parrish has not met his burden of showing the existence of an exception to State-agent immunity.

Price and Lovelace have established that they are entitled to State-agent immunity. Accordingly, we direct the trial court to enter a summary judgment in their favor.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Parker, Murdock, Shaw, Main, Wise, and Sellers, JJ., concur.

      Parrish secondarily relies on Dunnam v. Ovbiagele, 814 So.2d 232 (Ala. 2001). Like this case, Dunnam concerned the plaintiff's assertion that the defendants had failed to produce evidence establishing that they fit into a category of immunity restated in Cranman. However, Dunnam turned on a specific question inapplicable here: whether, as a matter of law, the defendant physicians fit into the Cranman category of immunity "provided for those 'exercising judgment in the discharge of duties imposed by statute, rule, or regulation in ... counseling or releasing persons of unsound mind.' " 814 So.2d at 237 (quoting Cranman, 792 So.2d at 405 ).

      The materials before us do not contain evidence establishing that the lock on the shower door that was opened during the attack on Parrish was inoperable.