Larry Gene Singleton v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-KA-01996-COA
LARRY GENE SINGLETON A/K/A LARRY APPELLANT
SINGLETON A/K/A LARRY G. SINGLETON
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 11/21/2013
TRIAL JUDGE: HON. JAMES MCCLURE III
COURT FROM WHICH APPEALED: TATE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
BENJAMIN ALLEN SUBER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: MELANIE DOTSON THOMAS
DISTRICT ATTORNEY: JOHN W. CHAMPION
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF COUNTS I AND V,
GRATIFICATION OF LUST, AND
SENTENCED TO FIVE YEARS ON EACH
COUNT; COUNTS II, III, AND IV, SEXUAL
BATTERY OF A CHILD UNDER
FOURTEEN YEARS OF AGE, AND
SENTENCED TO TWENTY YEARS ON
EACH COUNT; COUNTS VI, VII, AND VIII,
SEXUAL BATTERY OF A CHILD AT
LEAST FOURTEEN BUT UNDER SIXTEEN
YEARS OF AGE, AND SENTENCED TO
TWENTY YEARS ON EACH COUNT; AND
COUNTS IX, X, XI, XII, XIII, XIV, XV, XVI,
XVII, AND XVIII, POSSESSION OF CHILD
PORNOGRAPHY, AND SENTENCED TO
TEN YEARS ON EACH COUNT, WITH THE
SENTENCE IMPOSED IN COUNT IX TO
RUN CONSECUTIVELY WITH
SENTENCES IMPOSED IN COUNTS I
THROUGH VIII, AND WITH THE
SENTENCES IN ALL OTHER COUNTS TO
RUN CONCURRENTLY WITH ONE
ANOTHER, ALL IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH CREDIT FOR 353
DAYS SERVED, AND TO PAY $1,000 TO
THE MISSISSIPPI CHILDREN’S TRUST
FUND AND A $50,000 FINE FOR EACH OF
COUNTS IX THROUGH XVIII, WITH
$50,000 SUSPENDED FOR EACH OF
COUNTS IX THROUGH XVIII
DISPOSITION: AFFIRMED: 11/25/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., BARNES AND ISHEE, JJ.
GRIFFIS, P.J., FOR THE COURT:
¶1. Larry Gene Singleton was convicted of gratification of lust, sexual battery of a child
under fourteen years of age, sexual battery of a child at least fourteen but under sixteen years
of age, and possession of child pornography under Mississippi Code Annotated sections 97-
5-23, 97-3-95(1)(d), 97-3-95(1)(c), and 97-5-33(5), respectively. Singleton argues the trial
court erred when it: (1) denied Singleton’s motion to sever certain counts in the indictment;
(2) admitted Exhibit 5 into evidence; and (3) denied Singleton’s motion to suppress his
custodial statement. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
¶2. From approximately March 2005 to October 2012, Singleton engaged in a sexual
relationship with Daniel Doe,1 a child who lived next door to Singleton. Daniel first went
1
The name of the victim has been changed for confidentiality purposes.
2
to Singleton’s house to play with Singleton’s grandson and to do odd chores. When Daniel
turned eleven, however, the nature of the relationship changed.
¶3. Initially, Singleton showed Daniel his genitalia and asked to see Daniel’s. Singleton
told Daniel “that it was normal for guys to practice for when a girl comes around” and began
“stroking [Daniel] and stuff like that.” The physical contact escalated when Singleton started
performing oral and anal sex with Daniel. Contemporaneously to some of these earlier acts,
Singleton took pictures of a nude, prepubescent Daniel.
¶4. As Daniel got older, Singleton bribed him with alcohol, cigarettes, and pornography
in exchange for sex, with the final encounter occurring in October 2012. Shortly thereafter,
Daniel contacted the police regarding the acts perpetrated by Singleton.
¶5. On November 28, 2012, investigators with the Tate County Sheriff’s Department
arranged for a sting operation. Daniel called Singleton to talk about the sexual abuse while
investigators listened to and recorded the telephone conversation.
¶6. During the phone conversation, Singleton confirmed some of the abuse, gave Daniel
advice about sex, and commented on the changes in Daniel’s body from when he was a child.
Singleton also admitted he erased all of the pictures he took of Daniel years earlier. At the
end of the conversation, Singleton asked if Daniel recorded the conversation and asked to see
him again soon.
¶7. Based on Daniel’s statement and the recorded phone conversation, the Tate County
Sheriff’s Department executed search and arrest warrants for Singleton on December 3,
2012. Singleton was arrested, and law enforcement seized a personal computer and
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pornographic pictures from his home.
¶8. At the time of his arrest, Singleton told the officers he needed his medication because
he suffered from high blood pressure, a heart condition, and chronic obstructive pulmonary
disease (COPD). Singleton was allowed to bring his medication with him and, once at the
jail, a nurse evaluated Singleton. The nurse noted Singleton’s noncompliance with certain
medications, but did not observe any other medical abnormalities.
¶9. Investigators Bill Ellis and Stephanie Huddleston interrogated Singleton following his
medical evaluation. Singleton remained talkative and relaxed during the questioning. At no
point did Singleton indicate he felt ill, ask for the interrogation to stop, or state that he
wanted an attorney present.
¶10. Singleton continued to deny all allegations against him until the investigators played
the recorded phone conversation between Singleton and Daniel. After hearing the recording,
Singleton confirmed the phone number Daniel called was his and the man on the recording
sounded similar to him. Singleton eventually admitted the allegations made against him.
¶11. Prior to his trial, Singleton filed a motion to suppress his custodial statement and a
motion to sever certain counts in the indictment. On October 31, 2013, the trial court held
evidentiary hearings and ultimately denied both motions.
¶12. Singleton was tried on November 18 and 19, 2013. The jury returned a verdict of
guilty on all eighteen counts. On November 21, 2013, the trial court sentenced Singleton to
serve thirty years in custody of the Mississippi Department of Corrections and denied
Singleton’s motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative,
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a new trial. Singleton now appeals.
ANALYSIS
1. Whether the trial court erred in denying Singleton’s motion to sever the
charges for possession of child pornography from the charges for
sexual battery and gratification of lust.
¶13. Singleton argues that the trial court erred in the denial of his motion to sever certain
counts in the indictment. Specifically, Singleton contends that the charges for possession of
child pornography should have been severed from the charges for sexual battery and
gratification of lust. He argues that it was error to conclude that the time period between the
acts was insignificant because the State could not prove the exact time when the pictures
were taken. Due to this uncertainty, Singleton asserts the photographs could neither serve
as evidence in the non-pornographic counts, nor could all the counts be considered as
intertwined.
¶14. This Court reviews a trial court's denial of a motion to sever a multi-count indictment
for abuse of discretion. Harper v. State, 102 So. 3d 1154, 1158 (¶9) (Miss. Ct. App. 2011)
(citing Rushing v. State, 911 So. 2d 526, 532 (¶12) (Miss. 2005)). The relevant statute for
a multi-count indictment states:
Two (2) or more offenses which are triable in the same court may be charged
in the same indictment with a separate count for each offense if: (a) the
offenses are based on the same act or transaction; or (b) the offenses are based
on two (2) or more acts or transactions connected together or constituting parts
of a common scheme or plan.
Miss. Code Ann. § 99-7-2(1) (Rev. 2007).
¶15. “When a motion to sever is made, the State bears [the] burden of making out a prima
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facie case showing the offenses charged are within the language of the statute.” Harper, 102
So. 3d at 1158 (¶9) (citing Corley v. State, 584 So. 2d 769, 772 (Miss. 1991)). “If the State
meets its initial burden, the defendant may thereafter rebut the State's case by showing the
‘offenses were separate and distinct acts or transactions.’” Rushing, 911 So. 2d at 533 (¶14)
(quoting Corley, 584 So. 2d at 772).
¶16. To comply with the statute, the trial court must conduct a hearing to determine
whether or not to sever the counts. Golden v. State, 968 So. 2d 378, 382 (¶12) (Miss. 2007).
If the trial court holds such a hearing, this Court gives deference to the trial court’s findings,
unless an abuse of discretion occurred. Broderick v. State, 878 So. 2d 103, 105 (¶6) (Miss.
Ct. App. 2003) (citing Ott v. State, 722 So. 2d 576, 579 (¶15) (Miss. 1998)).
¶17. The Mississippi Supreme Court outlined three criteria a trial court must consider
during a hearing on a motion to sever: “(1) whether the time period between the occurrences
is insignificant; (2) whether the evidence proving each count would be admissible to prove
each of the other counts; [and] (3) . . . whether the crimes are interwoven.” Stribling v. State,
81 So. 3d 1155, 1162 (¶29) (Miss. Ct. App. 2011) (citing Rushing, 911 So. 2d at 533 (¶14)).
¶18. At his hearing, Singleton sought to sever the possession-of-child-pornography counts
from the sexual-battery and gratification-of-lust counts. Singleton contended that the
photographs allegedly depicting child pornography lacked date and time stamps. Thus,
Singleton argued, the State could not prove Singleton took the photographs
contemporaneously to the alleged occurrences of abuse.
¶19. The trial court evaluated the evidence proffered at the hearing under the Corley
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standards and stated:
[T]he Court should consider whether the time period between occurrences is
insignificant, which the Court finds it is in this matter. Whether evidence
proved in each count would be admissible to prove each of the other counts,
. . . and then three [sic] whether the crimes are interwoven. The Court finds
they’re interwoven[;] this is a motion to sever for a separate trial on this
issue[;] the Court finds that these are alleged pictures of the victim, of the
alleged victim, and therefore I’m going to deny the motion to sever.
Thus, the trial court found the photographs and allegations of abuse met the test for a proper
multi-count indictment set forth in Corley.
¶20. The counts in the indictment spanned a period from around March 2005 to December
2012, approximately seven years. Through testimony by Daniel and the investigators, the
State proffered a likely time period for the photographs of only one to two years, beginning
from 2005 until about 2007, although the exact time period remained unknown.
¶21. In several cases, the Mississippi Supreme Court has upheld trial court decisions that
found several months or even years to be insignificant periods of time to compel the
severance of multi-count indictments. Easley v. State, 46 So. 3d 345, 347 (¶12) (Miss. 2011)
(no reversible error when the trial court did not sever four counts involving three different
victims over the course of four years); Rushing, 911 So. 2d at 536 (¶17) (five months during
which three counts occurred was an insignificant amount of time); Eakes v. State, 665 So.
2d 852, 861-62 (Miss. 1995) (similar acts with the same victim over a five-month period an
insignificant amount of time); Allman v. State, 571 So. 2d 244, 249 (Miss. 1990) (similar acts
against the same victim over nine months part of a common scheme).
¶22. Here, the trial court determined that similar acts with the same victim over several
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years established a common scheme or plan. In Broderick, this Court affirmed a trial court’s
finding that similar acts with two victims over a two-year period comprised a common
scheme. Broderick, 878 So. 2d at 105 (¶¶7-8). While a period of up to seven years is
considerably longer than the occurrences in other cases, the time period remains insignificant
unless the trial court committed an abuse of discretion.
¶23. To identify an abuse of discretion, this Court “first determines whether the trial court
‘applied the correct legal standard.’” Greater Canton Ford Mercury, Inc. v. Lane, 997 So.
2d 198, 202 (¶12) (Miss. 2008) (quoting Burkett v. Burkett, 537 So. 2d 443, 446 (Miss.
1989)). This Court then must decide if the trial court’s holding was one of the possible
reasonable decisions the court could have reached. Id.
¶24. In denying Singleton’s motion to sever, the trial court used the proper legal standard
to reach a reasonable conclusion. The trial court considered the factors of similar conduct,
the same victim, and the time period to find that all of Singleton’s acts constituted a common
scheme or plan. The trial court, therefore, did not abuse its discretion in denying Singleton’s
motion to sever. This issue is without merit.
2. Whether the trial court erred in the admission of Exhibit 5.
¶25. Next, Singleton contends the trial court improperly admitted Exhibit 5 as character
evidence under Mississippi Rule of Evidence 404(b). Further, Singleton argues the
prejudicial nature of the exhibit outweighed its probative value under Mississippi Rule of
Evidence 403. We find that Singleton failed to properly preserve this issue for appeal. Thus,
this Court is procedurally barred from reviewing the issue.
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¶26. To preserve an issue for appellate review, “a timely objection stating the specific
ground of objection is required under [Mississippi Rule of Evidence] 103(a) if error is to be
predicated upon a ruling which admits evidence.” Dupuis v. State, 872 So. 2d 724, 728 (¶17)
(Miss. Ct. App. 2004) (citations omitted). “It has been held consistently that the failure to
make a contemporaneous objection at trial constitutes a waiver of any error subsequently
assigned [on appeal].” Moawad v. State, 531 So. 2d 632, 634 (Miss. 1988) (citations
omitted).
¶27. At trial, Singleton failed to object to the admission of Exhibit 5. When the State
introduced Exhibit 5 for admission into evidence, Singleton’s counsel and the trial court
exchanged the following:
COURT: Any objection, Mr. Walker?
DEFENSE COUNSEL: Judge, I don’t object as to what they demonstrate,
but I cannot concede that Mr. Singleton took the
pictures.
COURT: So what’s the basis of your objection?
DEFENSE COUNSEL: Judge, you know, I can’t argue that they
accurately and truly depict what’s shown in the
pictures, so I don’t have a basis to object on that.
So I guess in summary I do not have an objection.
(Emphasis added).
¶28. Further, when the State sought to admit the exhibit into evidence, the trial court asked
if Singleton objected. Singleton’s counsel replied, “No, sir, Your Honor,” and the exhibit
was entered into evidence without objection. Singleton neither objected at trial nor raised
9
the issue prior to this appeal. Therefore, Singleton failed to properly preserve this issue for
appeal. This issue is without merit, as it is procedurally barred.
3. Whether the trial court erred in denying Singleton’s motion to suppress
his custodial statement.
¶29. Singleton argues that it was error for the trial court to deny his motion to suppress his
custodial statement. Singleton challenges the validity of his confession due to his altered
mental state from his lack of medication and certain religious references made during his
interrogation, both of which he argues impeded his ability to give an accurate and voluntary
statement.
¶30. “Determining whether a confession is admissible is a finding of fact which is not
disturbed unless the trial court applied an incorrect legal standard, committed manifest error,
or the decision was contrary to the overwhelming weight of the evidence.” Thorson v. State,
895 So. 2d 85, 115 (¶73) (Miss. 2004) (quoting Lee v. State, 631 So. 2d 824, 826 (Miss.
1994)).
¶31. “This Court has held that ‘[w]hen a criminal defendant objects to the admission of his
confession, arguing it was involuntary, the trial court must conduct a hearing outside the
presence of the jury. At the hearing, the burden is on the State to prove voluntariness beyond
a reasonable doubt.’” Kleckner v. State, 109 So. 3d 1072, 1081 (¶18) (Miss. Ct. App. 2012)
(quoting Pinkston v. State, 50 So. 3d 1027, 1029 (¶8) (Miss. Ct. App. 2010)).
¶32. When a trial court inquires into the voluntariness of a confession, the trial court, as
the fact-finder, must “ascertain, under the totality of the circumstances and beyond a
10
reasonable doubt, that the defendant’s statement was freely and voluntarily given . . . .” Chim
v. State, 972 So. 2d 601, 603 (¶9) (Miss. 2008) (quoting Baldwin v. State, 757 So. 2d 227,
234-35 (¶8) (Miss. 2000)).
¶33. In evaluating the totality of the circumstances, the trial court should consider “the
defendant's experience and familiarity with the criminal justice system, intellectual capacity,
educational background, degree of literacy, emotional state and any mental disease or other
defect.” Brown v. State, 839 So. 2d 597, 600 (¶10) (Miss. Ct. App. 2003) (citing Holland v.
State, 587 So. 2d 848, 860 (Miss. 1991)).
¶34. For a valid confession, the trial court must determine if the defendant voluntarily,
knowingly, and intelligently waived his rights to counsel and against self-incrimination.
Chim, 972 So. 2d at 603 (¶7) (citing Miranda v. Arizona, 384 U.S. 436, 471 (1966)
(mandating that the custodian read the accused his or her right to remain silent and right to
counsel prior to an interrogation)).
¶35. A voluntary waiver of one’s Miranda rights is one made with “free and deliberate
choice rather than intimidation, coercion, or deception.” Id. at (¶8) (quoting Coverson v.
State, 617 So. 2d 642, 647 (Miss. 1993)). Further, a waiver is intelligently and knowingly
made if the defendant has a “full awareness both of the nature of the right being abandoned
and the consequences of the decision to abandon it.” Id. (citations omitted).
¶36. Investigator Huddleston testified that Singleton was read his Miranda rights and was
afforded the opportunity to read and sign a waiver of his rights. Investigator Huddleston
further testified that Singleton appeared to understand his rights, did not ask any questions,
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and voluntarily signed the waiver. Singleton, however, testified he did not remember signing
a waiver, even though he conceded the signature on the waiver was his.
¶37. Regardless, Singleton contended that he did not voluntarily give a self-incriminating
statement. At the hearing on his motion to suppress and at trial, Singleton asserted two bases
for the alleged involuntariness of his statement: (1) the use of the phrase “come to Jesus” by
one of the investigators exploited his religious beliefs and intimidated him into confessing,
and (2) the deprivation of medication for his high blood pressure, COPD, and heart disease
placed him in a confused and "foggy state" during the portion of the interrogation when he
confessed.
A. Religious Reference
¶38. Singleton asserts that his confession resulted from pressure and intimidation from the
investigators. Singleton testified that Investigators Ellis and Huddleston “play[ed] good cop
and bad cop,” which led to a feeling of intimidation. Singleton primarily contends, however,
Investigator Ellis coerced Singleton into confessing when he made the remark that it was
time for Singleton to “come to Jesus.”
¶39. Singleton, a preacher for approximately fifty-four years, argues that Investigator Ellis
took advantage of his religious beliefs by using Jesus to elicit a confession. The United
States Supreme Court has held “coercive police activity is a necessary predicate to the
finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of
the Fourteenth Amendment.” Colorado v. Connelly, 479 U.S. 157, 167 (1986).
¶40. The Connelly Court further held “the Fifth Amendment privilege [against self-
12
incrimination] is not concerned ‘with moral and psychological pressures to confess
emanating from sources other than official coercion.’” Id. at 170 (quoting Oregon v. Elstad,
470 U.S. 298, 305 (1985)). In fact, the Supreme Court has found that the use of religious
references does not automatically render a confession involuntary. Berghuis v. Thompkins,
560 U.S. 370, 386 (2010) (religious line of questioning during interrogation did not amount
to coercion and did not render confession involuntary).
¶41. In this instance, Investigator Ellis told Singleton that it was “time to come to Jesus”
after the investigators played the tape-recorded conversation between Singleton and Daniel,
and Singleton continued to deny his involvement with Daniel. Investigator Ellis testified his
use of the phrase was merely to get Singleton to tell the truth in light of the incriminating
evidence.
¶42. The Mississippi Supreme Court held that “[a] mere exhortation to tell the truth is not
an improper inducement that will result in an inadmissible confession.” Harden v. State, 59
So. 3d 594, 605 (¶26) (Miss. 2011) (citing Ruffin v. State, 992 So. 2d 1165, 1172 (¶20) (Miss.
2008)). While Singleton stated he found the remark offensive, Investigator Ellis testified he
did not use any threatening or intimidating language or tone that would constitute coercion.
This inducement to tell the truth without more does not rise to the level of coercion. Thus,
the religious reference did not render Singleton’s statement involuntary.
B. Singleton’s Unmedicated State
¶43. Singleton further contends he lacked the proper mental state to confess due to a
deficiency in his medication. Singleton testified that, at the time of his interrogation, he took
13
approximately half of his medication because he could not afford the other medications.
Singleton testified he ran out of the medication nearly ten days prior to his arrest.
Nevertheless, Singleton maintains his unmedicated state affected him during his confession.
¶44. Courts have held that the mental condition of the defendant does not per se render a
confession involuntary, but mental state must be considered within the totality of the
circumstances. Kircher v. State, 753 So. 2d 1017, 1026 (¶37) (Miss. 1999) (affirming the
trial court’s finding that a defendant’s confession while in the hospital and medicated was
voluntary). Further, “[i]ntoxication or sickness does not automatically render a confession
involuntary. The admissibility of a confession depends on the degree of intoxication.” Id.
(quoting Johnson v. State, 511 So. 2d 1360, 1365 (Miss. 1987)).
¶45. At the hearing, the investigators testified to Singleton's educational background,
literacy level, emotional/mental state, and criminal history, which showed his familiarity with
the justice system. Singleton received a bachelor's degree from a university, worked as a test
grader at a school prior to his arrest, appeared relaxed and not emotionally strained, and had
a previous unrelated arrest.
¶46. Investigators Huddleston and Ellis both testified that Singleton did not appear
confused or in any altered mental state during the entirety of the interrogation. Both stated
Singleton gave detailed descriptions of certain geographic areas and freely spoke during the
majority of the interrogation. At no time did Singleton ask the interrogation to stop due to
illness or ask for medical assistance.
¶47. Singleton fails to demonstrate how his lack of medication led to an intoxicated or
14
sickened state that adversely affected the voluntariness of his confession. Singleton merely
claims the unmedicated state compromised the voluntariness of his confession, even though
other portions of the interrogation occurred without incident. After considering the totality
of the circumstances, the trial court found the State met its burden in proving Singleton
validly waived his rights and voluntarily confessed to the criminal allegations against him.
¶48. The trial court’s decision stands in the absence of the application of an incorrect legal
standard, manifest error, or a decision contrary to the overwhelming weight of the evidence.
The trial did not commit any of these errors. Therefore, this issue has no merit.
¶49. THE JUDGMENT OF THE TATE COUNTY CIRCUIT COURT OF
CONVICTION OF COUNTS I AND V, GRATIFICATION OF LUST, AND
SENTENCE OF FIVE YEARS ON EACH COUNT; COUNTS II, III, AND IV,
SEXUAL BATTERY OF A CHILD UNDER FOURTEEN YEARS OF AGE, AND
SENTENCE OF TWENTY YEARS ON EACH COUNT; COUNTS VI, VII, AND VIII,
SEXUAL BATTERY OF A CHILD AT LEAST FOURTEEN BUT UNDER SIXTEEN
YEARS OF AGE, AND SENTENCE OF TWENTY YEARS ON EACH COUNT; AND
COUNTS IX, X, XI, XII, XIII, XIV, XV, XVI, XVII, AND XVIII, POSSESSION OF
CHILD PORNOGRAPHY, AND SENTENCE OF TEN YEARS ON EACH COUNT,
WITH THE SENTENCE IMPOSED IN COUNT IX TO RUN CONSECUTIVELY
WITH SENTENCES IMPOSED IN COUNTS I THROUGH VIII, AND WITH THE
SENTENCES IN ALL OTHER COUNTS TO RUN CONCURRENTLY WITH ONE
ANOTHER, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH CREDIT FOR 353 DAYS SERVED, AND PAYMENT OF
$1,000 TO THE MISSISSIPPI CHILDREN'S TRUST FUND AND A $50,000 FINE
FOR EACH OF COUNTS IX THROUGH XVIII, WITH $50,000 SUSPENDED FOR
EACH OF COUNTS IX THROUGH XVIII, IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO TATE COUNTY.
LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.
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