William Henderson v. State of Mississippi , 2015 Miss. App. LEXIS 347 ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-KA-01782-COA
WILLIAM HENDERSON A/K/A WILLIAM E. APPELLANT
HENDERSON A/K/A WILLIAM EARL
HENDERSON
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 04/09/2013
TRIAL JUDGE: HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED: YAZOO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: JUSTIN TAYLOR COOK
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: MELANIE DOTSON THOMAS
DISTRICT ATTORNEY: AKILLIE MALONE OLIVER
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF STATUTORY RAPE AND
SENTENCED AS A HABITUAL OFFENDER
TO THIRTY YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITHOUT THE BENEFIT
OF PAROLE OR SUSPENSION OF
SENTENCE
DISPOSITION: AFFIRMED: 06/23/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., BARNES AND FAIR, JJ.
FAIR, J., FOR THE COURT:
¶1. William Henderson was convicted of the statutory rape of his thirteen-year-old cousin,
Abby.1 She testified that Henderson had repeatedly displayed a pistol to intimidate her into
having sex with him.2 After their final encounter was interrupted, Henderson literally
jumped out the window of the victim’s bedroom, leaving behind some of his clothes and a
condom wrapper bearing his fingerprint. On appeal, he raises four varied issues. We find
no merit to any of them, and so we affirm Henderson’s conviction and sentence.
DISCUSSION
1. Admission of the Letter
¶2. The trial court admitted into evidence a handwritten letter given by Henderson to a
jailmate to be delivered to a friend Henderson had visited the day of his final sexual
encounter with Abby. In the letter, Henderson asked the friend to testify in his defense and
corroborate his account that he had left the friend’s residence with a girlfriend. It closed by
asking the friend not to say anything about a gun. The letter was delivered, but the friend’s
mother found it; and it ultimately made its way to the authorities. It was offered into
evidence by the prosecution and was admitted into evidence over Henderson’s objection.
The friend testified at trial and contradicted the narrative of the letter in material respects.
¶3. A trial court’s decision to admit or exclude evidence is reviewed for abuse of
discretion. Gillett v. State, 56 So. 3d 469, 494 (¶61) (Miss. 2010).
1
This Court uses fictitious names to protect the identity of minor victims of sexual
abuse.
2
Henderson was also tried for two counts of sexual battery, but the jury could not
reach a verdict on those counts.
2
¶4. The cellmate testified that Henderson gave him a letter and that he delivered it to the
friend. The friend testified that the letter was the one delivered to him by the cellmate on
Henderson’s behalf. Henderson contends that the letter was not properly authenticated
because the handwriting was never confirmed to be his. Henderson’s position is, it seems,
that Mississippi Rule of Evidence 901(b)(2) is the only way a handwritten note could have
been authenticated. Rule 901(b)(2) does permit authentication of a handwriting by nonexpert
opinion testimony. But Rule 901(b) makes it clear that 901(b)(2) is an “example” which is
provided “[b]y way of illustration only, and not by way of limitation.”
¶5. Rule 901(a) outlines the relevant standard for admission: “The requirement of
authentication or identification as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is what its proponent
claims.” At trial, the prosecution never claimed to authenticate the letter by way of
handwriting, contending instead that it was authenticated by the chain of custody and by its
subject matter. Henderson waves this away by simply asserting, without citing any relevant
authority and without further argument, that “[i]t is not enough that Henderson is alleged to
have given this letter to someone in order to have it delivered” and that “it is immaterial that
the letter itself contained a desire for [the friend] to testify in Henderson’s trial.”
¶6. [T]here is a presumption that the judgment of the trial court is correct and the burden
is on the Appellant to demonstrate some reversible error to [the appellate court].” Birkhead
v. State, 57 So. 3d 1223, 1231 (¶28) (Miss. 2011). Accordingly, Mississippi Rule of
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Appellate Procedure 28(a)(6) requires that the appellant’s argument “contain the contentions
of appellant with respect to the issues presented, and the reasons for those contentions, with
citations to the authorities, statutes, and parts of the record relied on.” This rule “does not
simply require a party to mention authority; the authority must be used to develop the
argument in a meaningful way.” Archer v. State, 118 So. 3d 612, 621 (¶29) (Miss. Ct. App.
2012) (citation omitted).
¶7. Raising an issue on appeal requires more than the announcement of a position, and
the failure to affirmatively demonstrate error waives the issue for our consideration.
Jefferson v. State, 138 So. 3d 263, 265 (¶9) (Miss. Ct. App. 2014).
2. The Sleepy Juror
¶8. Henderson next argues that the trial court erred in not sua sponte dismissing a juror
Henderson alleges was sleeping during the trial. Twice during the trial, the judge interrupted
the proceedings to check on one of the jurors.3 The first time, she stated:
THE COURT: [Juror], you’ve got to stay with us.
JUROR: Yes, ma’am.
THE COURT: Keep your eyes open so I know you’re listening.
Subsequently, the prosecutor asked for a recess after noting that the juror was holding his
head in his hand. The prosecutor expressed concern that the juror may have been asleep.
3
The judge referred to the juror by his surname, but there were two jurors with that
name. From the context it appears to have been the same individual in both instances.
4
After the recess, the judge was again concerned:
THE COURT: [Juror], still listening[?]
JUROR: Yes.
THE COURT: Keep your eyes open. Keep your eyes open for me.
When adjourning for the day, the judge directed these words to the juror in question:
“[Juror,] if you go home now, go to bed. I bet you’ll do better tomorrow.”
¶9. Henderson never objected, interjected, or otherwise expressed any concern about the
juror in question during the trial. Nonetheless, on appeal he claims that the juror was asleep
during critical parts of the case, and he contends that the trial court had an obligation to
dismiss the juror sua sponte.
¶10. We find no merit to this argument. The record reflects only suspicion that the juror
was sleeping – and at two or three discrete points in time, not for extended periods, as
Henderson alleges. To the extent the record is unclear about what actually occurred, it is
because Henderson did not raise the issue before the trial court; had he done so, the court
could have inquired further, made express findings of fact, and taken action to prevent any
error before it occurred.
¶11. Without a timely request from Henderson, the trial court was under no obligation to
remove the juror suspected of sleeping. Norris v. State, 490 So. 2d 839, 846 (Miss. 1986).
We find no merit to these belated complaints.
3. Police Interview
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¶12. Next, Henderson contends that the trial court erroneously admitted into evidence an
audio recording of a police interview with the victim, Abby. The recording was offered as
a prior consistent statement under Mississippi Rule of Evidence 801(d)(1)(B) to rebut the
repeated claims of Henderson’s attorney that Abby had recently fabricated some of the details
of her account – primarily that Henderson used a gun to intimidate her into having sex with
him.
¶13. On appeal Henderson ignores this basis for admitting the recording and instead argues
that Abby’s statement could not be admitted under the tender-years exception to the rule
against hearsay. See M.R.E. 803(25). This is a curious contention since, so far as we can
see, no one had previously suggested that Abby was of tender years. A child is presumed to
be of tender years if she is younger than twelve years of age, Veasley v. State, 735 So. 2d
432, 433 (¶1) (Miss. 1999), but Abby was fourteen when she was interviewed. Neither the
State nor the trial court ever suggested Rule 803(25) was the basis for admitting the
recording.
¶14. Henderson otherwise only offers the bald assertion that “[n]o other hearsay exception
applies.” Even if that were true, Rule 801(d) explicitly defines prior consistent statements
as nonhearsay, and since such statements are not hearsay, no exception to the rule against
hearsay is required. Henderson has failed to show any error in the admission of the
interview.
4. Sentencing as a Habitual Offender
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¶15. Finally, Henderson contends that the trial court did not have before it sufficient
evidence to sentence him as an habitual offender, because “there was absolutely no evidence
admitted during the sentencing hearing.” Henderson does not acknowledge in his brief that
there is extensive documentation of his prior offenses in the record – the documents were just
accepted into evidence prior to the sentencing hearing.
¶16. When the same issue was squarely presented to the Mississippi Supreme Court last
year, it found the admission of the evidence prior to the sentencing hearing to be irregular,
but not reversible error. Conner v. State, 138 So. 3d 143, 150-52 (¶¶17-26) (Miss. 2014).
It bears mentioning that although Henderson does not cite Conner or explain how its holding
relates to his arguments, Henderson’s appellate counsel was counsel of record in Conner, and
the decision in Conner was handed down and the mandate issued several months before
Henderson’s brief was submitted.
¶17. Various documents establishing that Henderson is a habitual offender were made a
part of the record, without objection, during the pretrial hearing to amend Henderson’s
indictment to charge him as a habitual offender. During the sentencing hearing, the
prosecutor asked the trial court to take judicial notice of the exhibits previously admitted.
Not only did this not garner an objection from Henderson, but his attorney conceded that
Henderson was a habitual offender; she stated that “the convictions speak for themselves.”
Henderson only contested the timing of the order amending the indictment. In his brief on
appeal, Henderson ignores all of this, repeatedly contending that the evidence had to be
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admitted during the sentencing hearing. This argument was rejected in Conner. See id.
¶18. As in Conner, this issue is procedurally barred because it was not raised in the trial
court. Id. at 150 (¶19). Furthermore, it is plain from the transcript that the trial judge
examined the documents at the sentencing hearing, and they were made part of the record.
Id. at 152 (¶25). This issue is without merit.
¶19. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY OF
CONVICTION OF STATUTORY RAPE AND SENTENCE AS A HABITUAL
OFFENDER OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITHOUT THE BENEFIT OF PAROLE OR
SUSPENSION OF SENTENCE, IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO YAZOO COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS,
CARLTON, MAXWELL AND JAMES, JJ., CONCUR.
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