Jeremy Wade Holloway v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2012-KA-01389-COA
JEREMY WADE HOLLOWAY APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 05/21/2012
TRIAL JUDGE: HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: CLARENCE TERRELL GUTHRIE III
TODD A. COKER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LISA L. BLOUNT
DISTRICT ATTORNEY: MICHAEL GUEST
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF TWO COUNTS OF
SEXUAL BATTERY AND ONE COUNT OF
RAPE AND SENTENCED TO TWO
CONCURRENT TERMS OF THIRTY
YEARS FOR THE SEXUAL-BATTERY
COUNTS AND A CONCURRENT TERM OF
FORTY YEARS FOR THE RAPE COUNT,
WITH TEN YEARS SUSPENDED AND FIVE
YEARS OF SUPERVISED PROBATION,
ALL IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS
DISPOSITION: AFFIRMED – 09/15/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., BARNES AND FAIR, JJ.
IRVING, P. J., FOR THE COURT:
¶1. A Rankin County jury found Jeremy Wade Holloway guilty of two counts of sexual
battery and one count of rape. The circuit court sentenced him to two concurrent terms of
thirty years for the sexual-battery counts and to a concurrent term of forty years for the rape
count, with ten years suspended and five years of supervised probation, all in the custody of
the Mississippi Department of Corrections (MDOC).
¶2. On appeal, Holloway argues that (1) the circuit court erred in excluding certain
evidence; (2) that the evidence presented was insufficient to prove beyond a reasonable doubt
that he committed the offenses; (3) the circuit court abused its discretion in denying his
motion for a new trial; and (4) the cumulative effect of the errors mandates reversal of his
convictions.
¶3. Finding no error, we affirm Holloway’s convictions and sentences.
FACTS
¶4. On the night of February 15, 2011, Ellis Wilkerson and his girlfriend, Catherine
Branch,1 arrived at the Brandon City Park, where they walked along a trail onto a bridge
located toward the back of the park. While the couple was on the bridge, a man, wearing a
ski mask and holding a gun, appeared from the bushes and ordered them to get on the ground,
and, as Catherine began to lie down, he grabbed her by her hair and dragged her up a hill.
There, he forced her to perform oral sex on him and then disappeared. Catherine vomited,
and as she was recovering from this assault, a second assailant, later identified as Holloway,
Wilkerson’s roommate, appeared wearing a mechanic’s jumpsuit and a mask. He pointed
1
We have substituted a pseudonym for the name of the sexual-assault victim to help
protect her identity.
2
a gun at Catherine and also forced her to perform oral sex on him. Afterwards, he vaginally
raped her and then forced her to perform oral sex on him once again. After the assault,
Holloway told Catherine to stay on the ground and not to look at him. In the meantime, the
first assailant and Wilkerson came up the hill where Holloway and Catherine were. One of
the assailants punched Wilkerson, and the two assailants left.
¶5. After lying on the ground for about thirty minutes, Wilkerson and Catherine went to
the nearby Kroger parking lot, where Catherine’s car was parked. Catherine asked Wilkerson
if they should go to the police, and he told her that the assailants had informed him that they
would be killed if they reported the assault. Catherine then asked Wilkerson if she could stay
with him, but he refused. After Wilkerson left, Catherine got into her car and started to drive
toward her home. However, reluctant to go home, she went to the Pearl Police Department
(PPD) instead and reported the assault. She informed the police that she had been sexually
assaulted at the park. The PPD informed the Brandon Police Department (BPD), and officers
from the BPD escorted Catherine to the University of Mississippi Medical Center (UMMC).
There, Catherine was examined, and nurse Kelly Burke administered a rape kit to her.
¶6. While Catherine was at UMMC, BPD Officer David Smith went to Wilkerson's
apartment to speak with him because, at that time, he believed that Wilkerson was also a
victim. Holloway answered the door and helped Officer Smith locate Wilkerson, who was
not at the apartment at the time. Officer Smith later spoke separately with Wilkerson and
Holloway at the BPD. Also, Holloway gave Officer Smith permission to search his cell
3
phone. Officer Smith looked through the phone and noticed phone-call traffic between
Holloway, Fortenberry, and Wilkerson between 10:30 p.m. and 10:45 p.m. on February 15,
2011. However, at that point, all three men were free to leave.
¶7. At 5:00 a.m. the next morning, Officer Smith interviewed Catherine, who had been
taken to the BPD after completion of her examination at UMMC. Based on his investigation
and the description that Catherine gave of one of her assailants— “tall with long hair and .
. . skinny”—Officer Smith obtained a search warrant for Holloway’s DNA. On February
17, 2011, Holloway gave oral and written statements to Officer Smith, submitted a buccal
swab for DNA testing, and was, subsequently, arrested. Also, Holloway consented to a
search of his and Wilkerson’s apartment. During the search, Officer Smith retrieved a pistol
inside a holster and a ski mask that Holloway admitted to using during the assault on
Catherine.
¶8. In his written statement, Holloway wrote:
My TV ended up getting knocked off [the] wall[;] Ellis [Wilkerson] felt bad[,]
and[,] between David [Fortenberry] and himself[,][Wilkerson] came up with
a plan to make a fake rape scenario to get back at [Catherine] for the TV[,] and
we were told to hide in [the] bushes and wait for them to walk by and David
approached her with [a] bb gun and told her to get down[;] . . . then I was next
and I told her to take [her] pants off[,] . . . and then she claimed . . . rape[] . .
..
Officer Smith stated that during his interview with Holloway, Holloway “was a little upset
that [Catherine] did not - - [Catherine] didn’t put up more resistance, and it would have felt
better to him if he, at least, had to have forced her to have sex. And [Holloway] felt that it
4
was consensual because it was so easy.”
¶9. As stated, Holloway was indicted, tried, and convicted of two counts of sexual battery
and one count of rape.2 Holloway filed a post-trial motion, which was denied by the circuit
court. Following the denial of Holloway’s post-trial motion, he instituted this appeal, but
later filed a motion with this Court seeking a stay of the appeal and a remand of the case to
the circuit court for consideration of an alleged Brady3 violation. We granted the motion and
directed the circuit court to hold a hearing on the limited issue of whether there had been a
Brady violation. The hearing addressed whether Holloway’s neighbor, Chris Moore, gave
an exculpatory oral and written statement to Officer Smith that was never tendered to
Holloway. The circuit court held the Brady hearing on April 29, 2014, and found that there
was no Brady violation.
DISCUSSION
I. Rule 412 Evidence
¶10. Holloway argues that the circuit court committed reversible error when it refused to
allow evidence that Catherine willingly engaged in oral sex with Wilkerson in the Kroger
parking lot shortly after she had been assaulted in the park. Prior to trial, Holloway filed a
motion entitled, “Motion to Offer Evidence Pursuant to Mississippi Rule of Evidence 412
2
Holloway did not testify during his trial, but recalled Catherine to the stand and
interrogated her about a matter that was referenced during the State’s case-in-chief after she
had testified. Specifically, she denied that she told anyone that the assault did not occur and
affirmed that Wilkerson tried to get her to lie about the incident.
3
Brady v. Maryland, 373 U.S. 83 (1963).
5
and Offer of Proof.” In the motion, he alleged the following:
. . . The Defendant, upon information and belief, would show unto the [c]ourt
that on the night in question, prior to the incident giving rise to the allegations
in the indictment, the complainant, Catherine, had consensual oral-sexual
intercourse with Defendant James David Fortenberry.
. . . That immediately after the alleged incident the complainant, Catherine, had
consensual oral sexual intercourse with Defendant Ellis Wade Wilkerson, Jr.
Law enforcement and the State are aware of this allegation through the
statements of James David Fortenberry and Ellis Wade Wilkerson, Jr., and,
upon information and belief, the complainant, Catherine.
. . . The complainant, prior to the night of the allegation, had consensual oral
and vaginal intercourse with [D]efendants Ellis Wade Wilkerson, Jr., and
James David Fortenberry, along with a third individual, while, upon
information and belief, in the presence of codefendant Jeremy Wade
Holloway. Law enforcement and the State are aware of this allegation through
statements, not provided in discovery, of the complainant, Catherine.
. . . The existence of these prior sexual relationships is admissible under
Mississippi Rule of Evidence 616 as to bias, prejudice[,] or interest for or
against any party and therefore admissible under Mississippi Rule of Evidence
412(b)(1).
. . . The existence of the prior sexual encounters with . . . [D]efendant James
David Fortenberry is admissible pursuant to [Rule] 412(b)(2)(A).
. . . The consensual oral sexual encounter with Defendant Wilkerson does not
fall within the parameters of guidelines of [Rule] 412[,] as it is not a past
sexual encounter from the allegations occurring on or about February 15, 2011,
but rather a subsequent act. However, should the Court determine this
allegation does fall within the guidelines of [Rule] 412, then it should be
admitted as a consensual sexual encounter pursuant to [Rule] 412(b)(2)(B).
Additionally, this evidence is admissible under [Mississippi Rules of
Evidence] 608 and 616.
¶11. In denying Holloway’s motion, the circuit court stated:
I don’t believe that any evidence of any sexual relations that the victim had
6
prior to or after this [sexual assault] is relevant under the case law that I
reviewed.
And I believe that it would not be relevant under the facts of this case[;] any
consensual intercourse that she had with anybody else prior to this [sexual
assault] or after this [sexual assault] would not be relevant to whether or not
what occurred during this [sexual assault] was consensual or not . . . . I find
that even if it does has [sic] any relevance[,] . . . the prejudicial effect . . .
substantially outweighs the probative value and can tend to mislead the jury or
confuse the jury. So I’m going to exclude it in that regard.
¶12. After the circuit court’s ruling, Holloway argued that the sexual act with Wilkerson
happened after the charged offenses and would not qualify for admission under Rule 412 but
rather would go to Catherine’s state of mind, motive, and intent. The circuit court reiterated
that (1) the subsequent consensual-sex act in and of itself was not relevant evidence; and (2)
the evidence would not be admitted unless there was testimony adduced for the purposes of
showing that Catherine’s behavior was inconsistent with that of a rape victim.
¶13. On appeal, Holloway has abandoned his contention that the circuit court erred in not
allowing admission of the allegations of Catherine’s prior sexual behavior. Rather, he
focuses solely on the post-assault sexual conduct with Wilkerson and argues that the circuit
court—in denying admission of the evidence regarding the subsequent consensual-sexual
act with Wilkerson—improperly characterized the evidence as Rule 412 evidence. He argues
that the evidence does not fall under Rule 412 because the act occurred after the sexual
assault by Holloway. He also argues that if the subsequent consensual-sexual act is to be
analyzed under Rule 412 evidence, then it should have been admitted because it was
“constitutionally required” to be admitted. He concedes that there is no Mississippi authority
7
in support of his contention, asserting: “Mississippi does not currently have a standard of
admissibility under the constitutionally required mandate [of Rule] 412(b)(1). No case law
touches on it, and so this Court is urged to adopt the standard of the United States military
courts with regard to this exception to [Rule] 412.”
¶14. Rule 412 states:
(a) Notwithstanding any other provision of law, in a criminal case in which a
person is accused of a sexual offense against another person, reputation or
opinion evidence of the past sexual behavior of an alleged victim of such
sexual offense is not admissible.
(b) Notwithstanding any other provision of law, in a criminal case in which a
person is accused of a sexual offense against another person, evidence of a
victim's past sexual behavior other than reputation or opinion evidence is also
not admissible, unless such evidence other than reputation or opinion evidence
is:
(1) Admitted in accordance with subdivisions (c)(1) and (c)(2)
hereof and is constitutionally required to be admitted; or
(2) Admitted in accordance with subdivision (c) hereof and is
evidence of
(A) Past sexual behavior with persons other than the
accused, offered by the accused upon the issue of
whether the accused was or was not, with respect to the
alleged victim, the source of semen, pregnancy, disease,
or injury; or
(B) Past sexual behavior with the accused and is offered
by the accused upon the issue of whether the alleged
victim consented to the sexual behavior with respect to
which a sexual offense is alleged; or
(C) False allegations of past sexual offenses made by the
alleged victim at any time prior to the trial.
8
****
(d) For purposes of this rule, the term “past sexual behavior” means sexual
behavior other than the sexual behavior with respect to which the sexual
offense is alleged.
¶15. “This Court reviews the rulings of the trial court admitting or excluding evidence for
abuse of discretion.” Aguilar v. State, 955 So. 2d 386, 392 (¶19) (Miss. Ct. App. 2006)
(citing Ladnier v. State, 878 So. 2d 926, 933 (¶27) (Miss. 2004)). “An error in the admission
or exclusion of evidence is not grounds for reversal unless the error affected a substantial
right of a party.” Aguilar, 955 So. 2d at 392 (¶19); M.R.E. 103(a). “[Rule] 412 is designed
to prevent the introduction of irrelevant evidence of the victim’s past sexual behavior to
confuse and inflame the jury into trying the victim rather than the defendant.” Aguilar, 955
So. 2d at 393 (¶19) (citing Hughes v. State, 735 So. 2d 238, 273 (¶153) (Miss. 1999)).
¶16. Rule 412 clearly excludes the evidence that Holloway sought to have admitted.
M.R.E. 412(d); see also Goodson v. State, 566 So. 2d 1142, 1150 (Miss. 1990) (opining that
“the reasons why it would be unfair to delve into the victim's sexual experience prior to a
rape extend equally to post-rape sexual activity”). Holloway asserts that the information was
constitutionally required per Rule 412(b)(1), excepting the otherwise excluded evidence.4
¶17. Like Holloway, we have not been able to find any Mississippi case law addressing
when evidence of a rape victim’s pre or post sexual activities is constitutionally required to
4
Holloway points out that this issue is underdeveloped in Mississippi’s jurisprudence.
However, we look to other jurisdictions for guidance.
9
be admitted under Rule 412(b)(1). However, the Court of Appeals of Oregon addressed this
issue in State v. Beeler, 999 P.2d 497 (Or. Ct. App. 2000). We find Beeler analogous to the
case at hand. In Beeler, the defendant offered evidence that a rape victim had had consensual
sex with a former boyfriend one day after the rape. Id. at 499. Because the Oregon Evidence
Code (OEC) did not allow such evidence to be admitted, the parties debated whether the
evidence was excepted from the prohibition of the OEC because it was constitutionally
required to be admitted.5 In deciding that question, the Court of Appeals of Oregon balanced
5
OEC 412, which tracks the same language found in Mississippi Rule of Evidence
412, provides:
(1) Notwithstanding any other provision of law, in a prosecution for a crime
described in ORS 163.355 to 163.427, or in a prosecution of an attempt to
commit such a crime, reputation or opinion evidence of the past sexual
behavior of an alleged victim of such crime is not admissible.
(2) Notwithstanding any other provision of law, in a prosecution for a crime
described in ORS 163.355 to 163.427, or in a prosecution of an attempt to
commit such a crime, evidence of a victim's past sexual behavior, other than
reputation or opinion evidence is also not admissible, unless such evidence
other than reputation or opinion evidence:
(a) Is admitted in accordance with subsection (3)(a) and (b) of
this section; and
(b) Is evidence that:
(A) Relates to the motive or bias of the alleged
victim; or
(B) Is necessary to rebut or explain scientific or
medical evidence offered by the state; or
10
the defendant’s constitutional right to present evidence on his behalf against the State’s right
to exclude evidence of limited relevance. Id. at 503. The defense theory in Beeler was that
because the victim had engaged in consensual sex the day after the rape it was more likely
that she also had consented to sex with the defendant and that the victim’s actions were not
like those of a rape victim. The Court of Appeals of Oregon concluded that the relevance
of the evidence was “marginal at best because there are any number of reasons why the
complainant might have engaged in subsequent sexual relations.” Id. It also stated that
“there is no meaningful distinction between sexual behavior before and after the crime.” Id.(citation omitted). Ultimately, the Beeler court ruled that the evidence was not
constitutionally required. Id.
¶18. Holloway attempts to explain that he had a constitutional right to have the evidence
of Catherine’s post-sexual-assault sexual activities with her boyfriend admitted because the
evidence was relevant to whether Catherine consented to have sex with Holloway and
(C) Is otherwise constitutionally required to be
admitted.
****
(4) For the purposes of this section:
****
(b) “Past sexual behavior” means sexual behavior other than the
sexual behavior with respect to which rape, sodomy or sexual
abuse or attempted rape, sodomy or sexual abuse is alleged.
11
disproved that she had been raped by him. This is indeed a strange argument. But even so,
Holloway admits that even if the evidence were relevant, it still must pass muster under
Mississippi Rule of Evidence 403. On this point, he asserts that the probative value is not
outweighed by the prejudicial effect.
¶19. The circuit court found that the evidence of Catherine’s post-assault sexual activities
with Wilkerson was not relevant and, therefore, was not constitutionally required to be
admitted. We agree. We cannot find that Catherine’s consenting sexual behavior with
Wilkerson can be taken to mean that she consented to Holloway’s sexual assault. As stated
above, the circuit court ruled that the probative value was outweighed by the prejudicial
effect and would “tend to mislead . . . or confuse the jury.” We also agree with the circuit
court on this point. Therefore, we find that the circuit court did not abuse its discretion in
excluding evidence of Catherine’s post-assault sexual activities with Wilkerson.
II. Exclusion of Evidence Regarding Alleged Attempts by Catherine to
Drop the Charges
¶20. Holloway argues that the circuit court erred in granting the State’s motion that sought
to exclude evidence that Catherine attempted to prevent the case from proceeding. Again,
we evaluate whether the circuit court abused its discretion in excluding the evidence.
Holloway points to the following telephone conversation between Catherine and Jim Kelly,
Wilkerson’s attorney at the time:
Attorney: What can I do for you?
Catherine: I was going to see if the charges were dropped today for
12
[Wilkerson] to get out and what his bail was.
Attorney: The bail has been lowered to one hundred thousand dollars, but
the charges have not been dropped.
Catherine: Okay. Because I’ve tried to drop them so many times and they
said that they don’t plan on dropping any—the district attorney
—so I don’t know how I would go about dropping them.
Holloway has taken this colloquy out of context. The transcript goes on:
Attorney: [I]t might help, Catherine, if you would explain to the
authorities why you want to drop the charges. Have you tried to
explain it to them?
Catherine: Well, I would rather them have, like, community service and
fines . . . .
Attorney: [H]ave you explained to them why - - not what you want the
sentence to be, but have you explained to them why you want
the charges dropped?
Catherine: No, because I’m stressed, and I’ve told them that, and I don’t
want to deal with this.
Attorney: I mean, have you told them - - have you told them that you kind
of figured it was [Holloway] anyhow?
Catherine: Well, I said I just didn’t want to believe it was.
Attorney: Yeah, but you kind of knew it, didn’t you?
Catherine: I felt like it afterwards, after they admitted it.
Attorney: Yeah.
Catherine: I didn’t want [the perpetrator] to be a stranger that I didn’t
know.
Attorney: Right.
13
Catherine: I still understand that they did it, but I still would like to drop the
charges.
* * **
Attorney: Have [Holloway and Fortenberry] put any pressure on you [to
drop the charges]?
Catherine: They want me to lie about the story.6
¶21. Read in context, the evidence is not relevant. Catherine’s desire to drop the charges
against Wilkerson, her boyfriend, and even Holloway, did not make it more or less probable
that Holloway did or did not rape her. See M.R.E. 401. This is especially true here, where
the evidence is overwhelming that Catherine was lobbied and pressured to lie and say that
the assaults never occurred. Furthermore, a “prosecution is initiated by the State's decision
that a suspect has violated a criminal statute and must be brought to account. An indictment
indicates that a grand jury has agreed.” Armstead v. State, 805 So. 2d 592, 597(¶20) (Miss.
Ct. App. 2001). Although Catherine was reluctant to have Wilkerson imprisoned, it is the
State’s decision to prosecute and uphold the laws of this state. We cannot find that the circuit
court abused its discretion in excluding the evidence of Catherine’s attempt to drop the
criminal charges.
III. Weight and Sufficiency of the Evidence
¶22. Holloway argues that the State failed to prove beyond a reasonable doubt that he was
6
The source of this conversation is from a transcript of an interview with Wilkerson’s
attorney that was a defense exhibit.
14
guilty of the crimes charged. He contends that the circuit court erred in denying his motion
for a judgment notwithstanding the verdict (JNOV) and his motion for a new trial. The
Mississippi Supreme Court has explained:
The appropriate inquiry on appeal in considering the trial court's denial of a
JNOV motion is whether the evidence shows beyond a reasonable doubt that
the defendant committed the act charged, and that he did so under such
circumstances that every element of the offense existed; and where the
evidence fails to meet this test it is insufficient to support a conviction . . . .
The prosecution must be given the benefit of all favorable inferences that may
reasonably be drawn from the evidence. Matters regarding the weight and
credibility to be accorded the evidence are resolved by the jury. We may
reverse only where, with respect to one or more of the elements of the offense
charged, the evidence so considered is such that reasonable and fair-minded
jurors could only find the accused not guilty.
Taggart v. State, 957 So. 2d 981, 985-86 (¶8) (Miss. 2007) (internal citation and quotations
omitted). With respect to the denial of a motion for a new trial challenging the weight of the
evidence, the Mississippi Supreme Court has stated:
[An appellate court] will reverse the trial court’s denial of a motion for a new
trial only if, by doing so, the court abused its discretion. We will not order a
new trial unless convinced that the verdict is so contrary to the overwhelming
weight of the evidence that, to allow it to stand, would be to sanction an
unconscionable injustice. This [c]ourt has also explained that factual disputes
are properly resolved by a jury and do not mandate a new trial.
Id. at 987 (¶11) (internal citation and quotation omitted).
¶23. Here, the evidence established all of the elements of sexual battery. Holloway
admitted to surprising Catherine while wearing a mask, holding a gun to her throat, and
forcing Catherine to perform oral sex on him. He also admitted to motioning with his gun
for Catherine to remove her pants and to having vaginal sex with her. Officer Smith testified
15
that based on his investigation, he secured a warrant for Holloway’s DNA that matched the
DNA that was swabbed from Catherine during her examination at UMMC.
¶24. Holloway’s defense was that Catherine consented. As stated, Officer Smith testified
that Holloway told him that Holloway was surprised that Catherine “didn’t put up more
resistance, and it would have felt better to him if he, at least, had had to force her to have sex.
And [Holloway] felt that it was consensual because it was so easy.” However, Catherine
testified twice that she did not consent to the sexual-assault encounter. More specifically,
when asked at trial whether the sexual assault by Holloway was “against [her] will,”
Catherine answered in the affirmative. When asked if she had consented to any of the sexual
acts that occurred, Catherine stated that she had not consented to any of them. Additionally,
Catherine testified that during the assault, she did not know the identity of the two masked
men who forced her to perform the sexual acts. We note that Holloway never stated that he
identified himself to Catherine during the assault. After reviewing all of the evidence in the
light most favorable to the State, we find that there was sufficient and credible evidence for
reasonable and fair-minded jurors to find Holloway guilty beyond a reasonable doubt of two
counts of sexual battery and one count of rape. Based on the record before us, we cannot
find that allowing the verdict to stand would sanction an unconscionable injustice.
Therefore, this issue is without merit.
IV. Brady Violation
¶25. Holloway also asserts that the State withheld an exculpatory statement made by Chris
16
Moore, who lived near Fortenberry and Wilkerson. According to Holloway, Chris overheard
Catherine recant her story, specifically stating that “it didn’t happen.” In Brady v. Maryland,
373 U.S. 83, 87 (1963), the United States Supreme Court established the principle that “the
suppression by the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” Our supreme court has held:
To establish a Brady violation[,] a defendant must prove the following: (1) that
the government possessed evidence favorable to the defendant (including
impeachment evidence); (2) that the defendant does not possess the evidence
nor could he obtain it himself with any reasonable diligence; (3) that the
prosecution suppressed the favorable evidence; and (4) that had the evidence
been disclosed to the defense, a reasonable probability exists that the outcome
of the proceedings would have been different.
King v. State, 656 So. 2d 1168, 1174 (Miss. 1995) (citing United States v. Spagnoulo, 960
F.2d 990, 994 (11th Cir. 1992)).
¶26. At the Brady hearing that was ordered by this Court, Officer Smith stated that he
recalled speaking with Chris but did not recall Chris informing him that Chris had overheard
Catherine recanting her story. Officer Smith testified that he did not have a written statement
by Chris because Chris did not give him one. Officer Smith explained that he did not
“write-up” the discussion because “he did not think the information [Chris] provided was
helpful to the investigation.”
¶27. Holloway submitted an affidavit, dated June 7, 2013, from Chris, detailing his alleged
conversation with Officer Smith that Holloway insisted occurred on or about February 17,
17
2011. In the affidavit, Chris swore that he gave Officer Smith a written statement informing
Officer Smith that he had heard Catherine and Wilkerson arguing in the hallway outside their
apartment and that he specifically heard Catherine tell Wilkerson that she was going to try
to have the charges dropped because “this didn't happen.” We note that in Chris’s affidavit
he recalled that his wife, Lauren, was present and that she saw him write out the statement
and witnessed it. However, at the Brady hearing, Chris could not recall whether his wife
witnessed the statement that he, allegedly, gave to Officer Smith. When his wife was
questioned about the statement, she could not recall witnessing or signing a “sheet of paper.”
She also could not recall the contents of the purported written statement.
¶28. The circuit court ultimately held that the credibility of Officer Smith’s testimony
outweighed Chris’s testimony. The circuit court pointed to the contemporaneous nature of
Officer Smith’s notes versus Chris’s affidavit made more than two years after the events
transpired, to which, substantively, his wife could not attest. The circuit court found that the
State did not possess a written statement by Chris. Also, the circuit court found that
Holloway, by using reasonable diligence, could have obtained whatever information Chris
gave to Officer Smith because Chris and his wife were listed as potential witnesses in Officer
Smith’s report. Holloway does not deny that he had access to Officer Smith’s report.
¶29. We cannot find that the circuit court erred in finding that no Brady violation occurred
because Holloway failed to meet all the prongs established in Brady—specifically, that the
State possessed evidence favorable to him that he could not obtain himself by utilizing
18
reasonable diligence. Therefore, this issue is without merit. In light of our finding that the
circuit court did not err in finding that a Brady violation did not occur, the denial of the
motion for a new trial is also without error.
V. Cumulative Error
¶30. Holloway asserts that the errors complained of, cumulatively, require reversal. In
Byrom v. State, 863 So. 2d 836, 847 (¶13) (Miss. 2003), the Mississippi Supreme Court
explained:
[U]pon appellate review of cases in which we find harmless error or any error
which is not specifically found to be reversible in and of itself, we shall have
the discretion to determine, on a case-by-case basis, . . . whether such error or
errors, although not reversible when standing alone, may when considered
cumulatively require reversal because of the resulting cumulative prejudicial
effect.
Here, we find no error. Therefore, there can be no cumulative prejudicial effect. “Where
there was no reversible error in any part, . . . there is no reversible error to the whole.”
Genry v. State, 735 So. 2d 186, 201 (¶73) (Miss. 1999) (citation and quotation marks
omitted).
¶31. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF
CONVICTION OF TWO COUNTS OF SEXUAL BATTERY AND ONE COUNT OF
RAPE AND SENTENCE OF TWO CONCURRENT TERMS OF THIRTY YEARS
FOR THE SEXUAL BATTERY COUNTS AND A CONCURRENT TERM OF
FORTY YEARS FOR THE RAPE COUNT, WITH TEN YEARS SUSPENDED AND
FIVE YEARS OF SUPERVISED PROBATION, ALL IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAXWELL, FAIR,
JAMES AND WILSON, JJ., CONCUR.
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