Alvin C. Wilson v. State of Mississippi , 267 So. 3d 264 ( 2019 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2018-KA-00314-SCT
ALVIN C. WILSON a/k/a ALVIN WILSON a/k/a
ALVIN CORNELIOUS WILSON
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 02/07/2018
TRIAL JUDGE: HON. STANLEY ALEX SOREY
TRIAL COURT ATTORNEYS: MATTHEW SULLIVAN
CARTER SMITH
STEPHANIE WOOD
CHRIS HENNIS
JONAS BOWEN
RANCE N. ULMER
COURT FROM WHICH APPEALED: JASPER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF THE STATE PUBLIC
DEFENDER
BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: KAYLYN HAVRILLA McCLINTON
DISTRICT ATTORNEY: MATTHEW SULLIVAN
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 04/11/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE KITCHENS AND KING, P.JJ., AND COLEMAN, J.
COLEMAN, JUSTICE, FOR THE COURT:
¶1. On August 1, 2016, a grand jury indicted Wilson for sexual battery in violation of
Mississippi Code Section 97-3-95(1)(d) (Rev. 2014). The indictment charged Wilson with
willfully, unlawfully, and feloniously engaging in sexual penetration with a child under the
age of fourteen years old on or about March 1, 2012. The indictment provided that at the
time of the sexual battery, Wilson was over the age of eighteen and was twenty-four months
older than the victim.
¶2. A Jasper County jury found Wilson guilty of sexual battery as charged. The trial court
sentenced Wilson to thirty-five years, with thirty years to be served day for day followed by
five years of supervised post release supervision. Wilson appeals, arguing that the trial court
erred by (1) admitting into evidence a video recording of his interview with law enforcement
and (2) proceeding with his trial and sentencing in absentia. Discerning no error, we affirm
Wilson’s conviction and sentence.
FACTUAL AND PROCEDURAL HISTORY
¶3. The trial court appointed public defender Rance Ulmer to represent Wilson. On
August 22, 2016, Wilson personally appeared before the trial court, waived arraignment, and
entered a plea of not guilty. Wilson was released on bond, and the court set trial for February
14, 2017. The trial court ordered that Wilson remain in constant contact with his attorney
and keep him advised of changes to his address and phone number.
¶4. On February 9, 2017, Wilson appeared before the trial court and entered a plea of not
guilty. The trial court entered an order allowing Wilson to remain out on bond and setting
trial for February 7, 2018. The order again required Wilson to remain in constant contact
with his attorney and to keep him advised of any change of address and phone number. The
order also provided that Wilson’s “failure to appear on the aforementioned date may result
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in [Wilson’s] being tried in [his] absence.” Wilson signed the order, agreeing to its form and
content.
¶5. On February 1, 2018, Wilson filed a petition to plead guilty to statutory rape in
violation of Section 97-3-65(1)(b) (Rev. 2014). Wilson was scheduled to appear before the
trial court to enter his guilty plea on Monday, February 5, 2018, but Wilson did not appear.
After Wilson failed to appear, the sheriff’s department attempted to contact Wilson.
Likewise, Ulmer attempted to contact Wilson. Ulmer and the sheriff’s department were
unsuccessful.
¶6. Trial commenced as scheduled on Wednesday, February 7, 2018. The State
announced it was ready for trial. The trial court then asked Ulmer whether Wilson was
present. Ulmer responded that he had not seen Wilson and moved for a continuance because
of his absence. Ulmer explained,
Last Wednesday, which according to my calendar is January 31st, 2018, I met
with Mr. Wilson at my office along with his wife. We discussed this case and
prepared, went over a guilty plea which he signed, executed, and we filed the
next day, February 1st, 2018. He has previously been told of his trial both by
verbally and by mail, which is today February 7th, 2018.
Since he was supposed -- he was to appear before this Court Monday, February
the 5th, 2018, to enter his guilty plea in Bay Springs at 1 o’clock p.m. He did
not show up. After that, my secretary and I made numerous phone calls to two
different numbers that I have in my file. One number is disconnected, which
is if I recall correctly is the number, his number which it says -- the answering
machine disconnected, unavailable, and I forgot the other term that the voice
on the phone left. The other number was to his mother, which just said the
mailbox was full and hung up. Or no, excuse me, the mailbox had not been set
up and hung up.
I tried to contact him after 5 o’clock on Monday and I believe on yesterday.
Still to no avail contact him at either number. I do not know if he has had an
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emergency, but he is not here today and I feel on behalf -- to do my duty, I
have to ask the Court for a continuance.
¶7. Ulmer informed the trial court that the last day he had contact with Wilson had been
on January 31, 2018. Before the last contact, Ulmer stated that he and Wilson had spoken
about his case, including possible defenses. The State offered into evidence the trial court’s
February 9, 2017, order of arraignment setting the case for trial on February 7, 2018. Ulmer
had no objection, and the order was admitted into evidence. The trial court also recalled that
the February 7, 2018, trial date had been confirmed at docket call.
¶8. The State called Investigator Chris Thompson of the Jasper County Sheriff’s
Department to the stand. Investigator Thompson testified that on February 6, 2018, he went
to Wilson’s address on file. Upon arriving at the address, Thompson spoke to Wilson’s
mother, who advised Thompson that she had not heard from Wilson in “a couple of days.”
Wilson’s mother provided a phone number to Investigator Thompson. Investigator
Thompson called the number on February 6, 2018, and February 7, 2018, the day of trial.
Investigator Thompson was unable to contact Wilson with the phone number provided by
Wilson’s mother.
¶9. The trial court denied the motion for continuance in light of the evidence presented,
the arraignment order setting the trial for February 7, 2018, and the confirmation of the trial
date at docket call. The trial court recognized Wilson’s constitutional right to be present in
the courtroom at every stage of his trial, however it noted that the right is subject to waiver.
The trial court found that Ulmer had made diligent efforts to contact Wilson. The trial court
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also found that Ulmer had done everything within his power to have his client present for
trial.
¶10. The trial court found that sufficient evidence had been presented showing that
Wilson’s absence was not due to any intervening cause other than Wilson’s own willful and
voluntary absence. The trial court found that Wilson’s absence was willful and voluntary
amounting to a deliberate attempt to avoid trial. As such, the trial court concluded that
Wilson had waived his right to be present at trial and ordered that the trial proceed in
absentia. Ulmer announced that he was ready for trial, and the trial proceeded.
¶11. At the time of trial, the minor victim Jane1 was seventeen years old. Jane testified that
she was born on October 26, 2000. Jane testified that in 2012, Wilson was her mother’s
boyfriend and that he lived with Jane and her mother. Jane testified that she had sexual
intercourse with Wilson on March 1, 2012. On March 1, 2012, Jane was eleven years old,
and Wilson was twenty-two years old. Jane became pregnant and, at the age of twelve years
old, gave birth to her daughter Mary2 on December 6, 2012. Jane testified that Wilson is
Mary’s father.
1
To protect the identity of the minor victim, the Court will use the fictitious name
Jane.
2
To protect the identity of the victim’s daughter’s name, the Court will use the
fictitious name Mary.
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¶12. Investigator Thompson testified that he investigated the alleged sexual battery of Jane.
After Wilson waived his Miranda3 rights, Investigator Thompson interviewed Wilson. A
video of the interview was played for the jury and entered into evidence.
¶13. Forensic DNA analyst Katherine Rodgers testified as an expert in the field of DNA
testing. Rodgers performed a paternity test to determine whether Wilson was Mary’s father
using DNA samples from Wilson, Jane, and Mary. Rodgers testified that Wilson could not
be excluded as the biological father of Mary. Rodgers opined that the probability that Wilson
is the father of Mary is 99.999998 percent compared to an untested, unrelated man of the
same race. Rodgers prepared a report of her findings, which was admitted into evidence.
¶14. The jury found Wilson guilty of sexual battery in violation of Section 97-3-95(1)(d)
as charged in the indictment. The trial court sentenced Wilson to thirty-five years, with thirty
years to be served day for day and the remaining five years to be served on supervised post
release supervision.
¶15. Following trial, Wilson filed a motion for a judgment notwithstanding the verdict or,
alternatively, for a new trial. The trial court denied the motion, and Wilson filed a notice of
appeal. On appeal, Wilson raises two assignments of error: (1) whether the trial court erred
by admitting a video recording of Wilson’s interview with law enforcement into evidence
and (2) whether the trial court erred by trying and sentencing Wilson in absentia.
STANDARD OF REVIEW
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Miranda v. Arizona, 384 U.S. 436 (1966).
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¶16. The admission or exclusion of evidence is reviewed for an abuse of discretion.
Hargett v. State, 62 So. 3d 950, 952 (¶ 7) (Miss. 2011). “Unless the [trial court] abuses [its]
discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.” Shaw
v. State, 915 So. 2d 442, 445 (¶ 8) (Miss. 2005) (quoting Jefferson v. State, 818 So. 2d 1099,
1104 (Miss. 2002)).
¶17. The decision to grant or deny a motion for a continuance is reviewed for an abuse of
discretion. Miles v. State, 249 So. 3d 362, 367 (¶ 23) (Miss. 2018). Likewise, the decision
to try a felony defendant in absentia is reviewed for an abuse of discretion. Wales v. State,
73 So. 3d 1113, 1119–20 (¶¶ 16-18) (Miss. 2011).
DISCUSSION
I. Whether the trial court erred by admitting the video of Wilson’s interview with
law enforcement.
¶18. Wilson argues that the trial court erred by admitting a video of Wilson’s inculpatory
interview with law enforcement because no foundation had been established by the State
under Mississippi Rule of Evidence 901. Wilson argues that no evidence was presented
showing that the video recording was accurate. Wilson also argues that no evidence
explained how the recording was made and whether the equipment used was functioning
properly or otherwise was reliable.
¶19. At trial, Investigator Thompson testified that he had interviewed Wilson as part of the
investigation of the case. Investigator Thompson testified that he read Wilson his Miranda
rights prior to conducting the interview. Investigator Thompson testified that Wilson waived
his Miranda rights and executed a Miranda waiver form. Investigator Thompson testified
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that, after executing the Miranda waiver, Wilson provided a statement to him in the Jasper
County Sheriff’s Department’s interview room. Investigator Thompson testified that the
statement was video recorded. Investigator Thompson also testified that he did not threaten
or coerce Wilson into providing the statement. Investigator Thompson testified that the
statement was freely and voluntarily given. Investigator Thompson testified that he did not
offer any reward to Wilson in exchange for making the statement. Investigator Thompson
testified that Wilson did not appear to be under the influence of alcohol or drugs.
¶20. After the Miranda waiver was admitted into evidence without objection, the following
colloquy ensued:
MR. SMITH:4 I would also ask at this point in time that the video
statement that [Investigator Thompson] just mentioned
be entered into evidence and be allowed to play it for the
jury at this time.
THE COURT: Any objection?
MR. ULMER: Play the whole thing, Judge.
¶21. The video was then played for the jury. After the video concluded, the State requested
that the video be admitted into evidence. Ulmer objected “for lack of a proper foundation
to admit the video into evidence.” The State responded that it had laid the proper foundation,
that Wilson had been advised of his Miranda rights, that the statement was voluntary, and
that the statement had been provided without threat or coercion.
¶22. Ulmer raised no specific concern about the accuracy, video recording equipment, or
reliability of the video recording; rather, Ulmer inquired about the date of the executed
4
The prosecutor for the State was Carter Smith.
8
Miranda waiver. Investigator Thompson verified the date of the waiver, and the trial court
overruled the objection. Investigator Thompson then testified that Wilson had provided his
video recorded statement immediately after he had executed the Miranda waiver. The trial
court then admitted the video statement into evidence.5 The State asked Investigator
Thompson a follow up question: “to recap that interview with you, what did Mr. Alvin
Wilson admit to you during the statement?” Ulmer objected, and the trial court said he
would allow “some leeway[, b]ut Mr. Smith the video is going to speak for itself.”
5
The record’s exhibit envelope contains a CD/DVD purporting to be the subject
interview. The CD/DVD is marked “Alvin Wilson Interview 9-24-15” along with the
exhibit sticker labeled “EXHIBIT S-3.” The CD/DVD contains two video files. The video
files are a video recording of a law enforcement interview with a female apparently from an
entirely unrelated case based on the content of the interview. No other video file is on the
CD/DVD, and no other CD/DVD is contained in the exhibit folder or elsewhere in the
record.
On June 8, 2018, the Jasper County Circuit Clerk served notice of the completion of
the appeal record for attorney review as required by Mississippi Rule of Appellate Procedure
11(d)(2). On June 21, 2018, Ulmer certified that the record was correct and complete to the
best of his knowledge after careful examination as required by Rule 10(b)(5). On July 19,
2018, Ulmer filed a motion to withdraw and requested that the Indigent Appeals Division
of the Office of the State Public Defender be substituted as counsel of record. On June 23,
2018, Ulmer’s motion was granted. Although the representations made in the parties’ briefs
and exhibit list indicate that Wilson’s video interview is in the record, it is not. Wilson’s
appellate counsel had the “duty to see that all . . . exhibits . . . are included in the record, and
he may not complain of his own failure in that regard. . . . There are adequate procedures
and safeguards to assure that incorrect or incomplete records are remedied.” State ex rel.
Miss. Bureau of Narcotics v. Canada, 164 So. 3d 1003, 1006 (¶ 9) (Miss. 2015) (quoting
Oakwood Homes Corp. v. Randall, 824 So. 2d 1292, 1293 (¶ 4) (Miss. 2002)).
Notwithstanding appellate counsel’s failure, a review of the police interview is not necessary
for purposes of the issues on appeal. Both parties agree that the interview contained
inculpatory statements. Other than generally referring to the statements as inculpatory,
neither party describes the substantive content of the interview.
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¶23. Based on Wilson’s trial counsel’s invitation to “play the whole thing, Judge[,]” we
cannot say that Wilson suffered any prejudice due to the subsequent admission of the video
interview into evidence. See Shaw, 915 So. 2d at 445 (¶ 8) (“Unless the [trial court] abuses
[its] discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.”
(quoting Jefferson v. State, 818 So. 2d 1099, 1104 (¶ 6) (Miss. 2002))).
¶24. Notwithstanding Ulmer’s invitation to play the entire video, Wilson’s interview was
sufficiently authenticated by Investigator Thompson’s testimony under Mississippi Rule of
Evidence 901. Rule 901 provides, “To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce evidence sufficient to support
a finding that the item is what the proponent claims it is.” M.R.E. 901(a). An example that
satisfies the requirement is testimony of a witness with knowledge that an item is what it is
claimed to be. M.R.E. 901(b)(1). “A party need only make a prima facie showing of
authenticity, not a full argument on admissibility. ‘Once a prima facie case is made, the
evidence goes to the jury and it is the jury who will ultimately determine the authenticity of
the evidence, not the court.’” Walters v. State, 206 So. 3d 524, 535 (¶ 32) (Miss. 2016)
(quoting Sewell v. State, 721 So. 2d 129, 140 (¶ 60) (Miss. 1998)).
¶25. Wilson cites Conway v. State, 915 So. 2d 521, 526 (¶ 19) (Miss. Ct. App. 2005), in
support of his argument. In Conway, the Mississippi Court of Appeals reasoned that an
edited surveillance video of the crime scene was admitted without proper authentication,
because the officer whose testimony had been used to authenticate the video was not present
at the crime scene, the officer had not edited the original video, and the officer never
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indicated that he had ever watched the original video. Id. at 526 (¶¶ 18-19) (concluding that
the State had failed to prove that the officer had sufficient knowledge of the crime scene in
order to testify that the edited videotape accurately depicted the events on the day in
question). Unlike the testimony in Conway, the authentication testimony offered to
authenticate Wilson’s video interview was based on information within Investigator
Thompson’s knowledge.
¶26. Investigator Thompson testified that he personally conducted the interview with
Wilson. Investigator Thompson testified about the events immediately preceding Wilson’s
statement involving his waiver of Miranda rights. Investigator Thompson also described
where he interviewed Wilson. Furthermore, Investigator Thompson testified that the
interview had been video recorded.
¶27. Investigator Thompson, who was familiar with and had knowledge of the contents of
the recording, provided testimony supporting the trial court’s finding that the video interview
was what the State claims it was, i.e., Wilson’s interview with Investigator Thompson.
Authentication might be accomplished “by testimony from someone familiar with and with
knowledge of the contents of the document or recording” under Rule 901(b)(1). Corrothers
v. State, 148 So. 3d 278, 310 (¶ 78) (Miss. 2014) (quoting Bunch v. State, 123 So. 3d 484,
492 (¶ 20) (Miss. Ct. App. 2013)). The trial court did not abuse its discretion by admitting
the video interview into evidence.
II. Whether the trial court erred by trying and sentencing Wilson in absentia.
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¶28. Wilson argues that, although he did not appear for his scheduled trial, the trial court
erred by denying his motion for a continuance, because it was not abundantly clear that his
absence was willful. Wilson also argues that the trial court erred by proceeding with his trial
and sentencing him in absentia.
¶29. “The decision to grant or deny a motion for a continuance is within the sound
discretion of the trial court and will not be grounds for reversal unless shown to have resulted
in manifest injustice.” Simmons v. State, 805 So. 2d 452, 484 (¶ 72) (Miss. 2001) (citing
Coleman v. State, 697 So. 2d 777, 780 (Miss. 1997)). Here, the trial court properly
proceeded within its discretion under Mississippi Code Section 99-17-9, which provides
In criminal cases the presence of the prisoner may be waived (a) if the
defendant is in custody and consenting thereto, or (b) is on recognizance or
bail, has been arrested and escaped, or has been notified in writing by the
proper officer of the pendency of the indictment against him, and resisted or
fled, or refused to be taken, or is in any way in default for nonappearance, the
trial may progress at the discretion of the court, and judgment made final and
sentence awarded as though such defendant were personally present in court.
Miss. Code Ann. § 99-17-9 (Rev. 2015). The trial court’s discretion under Section 99-17-9
is “limited by the fact that a felony defendant has a constitutional right to be present at trial.”
Wales, 73 So. 3d at 1120 (¶ 17) (citing U.S. Const. amend. VI; Miss. Const. art. 3, § 26).
¶30. In Wales, the Court held that the trial court did not abuse its discretion in finding that
defendant Leo Wales had voluntarily absented himself from his trial. Wales, 73 So. 3d at
1120 (¶ 18). The Court explained that Wales had assisted in his defense by consulting with
his attorney in anticipation of trial a week later. Id. Although Wales knew his trial date, he
did not appear at the courthouse for his trial. Id. The Court noted that extensive efforts to
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locate Wales over a two day period by the prosecution, the defense, and law enforcement
were fruitless. Id. Like Wilson, Wales argued that “no direct evidence was before the trial
court that his absence was voluntary[,]” however, the Court held that “substantial
circumstantial evidence was before the trial court demonstrating Wales’s intent to avoid
trial.” Id.
¶31. Here, Wilson failed to appear on the date of his scheduled trial, and the trial court
thoroughly inquired into Wilson’s nonappearance. Ulmer informed the trial court that he
personally told Wilson that his trial was set for February 7, 2018. Ulmer informed the trial
court that Wilson had been advised of his February 7, 2018, trial date by mail. Ulmer
explained his multiple unsuccessful efforts to contact Wilson, even though Wilson had been
ordered by the trial court to keep in constant contact with his trial counsel, including advising
his trial counsel of any address or telephone number changes. Investigator Thompson also
testified that he had made multiple unsuccessful efforts to contact Wilson after he had failed
to appear at a hearing two days before his scheduled trial date.
¶32. Based on the evidence presented, the trial court found that Wilson’s absence had been
a willful, voluntary, and deliberate attempt to avoid trial. As a result, the trial court found
that Wilson waived his constitutional rights to be present at trial. As in Wales, we hold that
the trial court did not abuse its discretion in trying Wilson in absentia.6
¶33. Alternatively, Wilson argues that even if the trial court did not err by trying him in
absentia, the trial court should have waited to sentence Wilson until he was in custody.
6
Wilson never raised—at trial or on appeal—Mississippi Rule of Criminal Procedure
10.1, which went into effect on July 1, 2017.
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¶34. After the jury returned a guilty verdict, the trial court announced
Because we tried this matter in absentia under Section 99-17-9, as I read the
statute even though we had trial today, we may proceed to final judgment.
Any objection from the defendant on me sentencing Mr. Wilson at this time?
¶35. Ulmer responded that he was not familiar with the statute and that he would “certainly
defer to [the trial court’s] judgment on [the statute].” The State also stated that it would
“[d]efer to the [trial c]ourt.” After reviewing the statute, the trial court found that it might
progress with sentencing at its discretion. The trial court proceeded by sentencing Wilson
as though he were present.
¶36. Even if Wilson’s alternative argument had been properly preserved, his argument
wholly lacks merit. As written above, the trial court did not abuse its discretion by finding
that Wilson had waived his constitutional rights to be present at trial and by trying him in
absentia. Under Section 99-17-9, “the trial may progress at the discretion of the court, and
judgment made final and sentence awarded as though such defendant were personally
present in court.” Miss. Code Ann. § 99-17-9 (emphasis added).
CONCLUSION
¶37. For the reasons stated above, we affirm the trial court’s judgment.
¶38. AFFIRMED.
RANDOLPH, C.J., KITCHENS AND KING, P.JJ., MAXWELL, BEAM,
CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.
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