Boggan v. State
| Docket Number: | 2002-KA-02120-COA Linked Case(s): 2002-CT-02120-SCT ; 2002-KA-02120-COA |
|
| Court of Appeals: |
Opinion Link Opinion Date: 07-27-2004 Opinion Author: Griffis, J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Statutory rape - Jury selection - Jury instructions - Leading questions - M.R.E. 611(c) - Cautionary instruction - Hearsay - Excessive sentence - Ineffective assistance of counsel - Sufficiency of evidence Judge(s) Concurring: King, C.J., Bridges and Southwick, P.JJ., Lee, Irving, Myers and Chandler, JJ. Non Participating Judge(s): Barnes and Ishee, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
|
| Trial Court: |
Date of Trial Judgment: 11-21-2002 Appealed from: Lauderdale County Circuit Court Judge: Larry Eugene Roberts Disposition: CONVICTED OF THREE COUNTS OF STATUTORY RAPE AND SENTENCED TO THREE CONCURRENT THIRTY YEAR TERMS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Bilbo Mitchell Case Number: 385-01 |
|
| Party Name: | Attorney Name: | |||
| Appellant: | James D. Boggan a/k/a James Douglas Boggan |
JAMES A. WILLIAMS |
||
| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: CHARLES W. MARIS |
|
|
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
|
| Topic: | Statutory rape - Jury selection - Jury instructions - Leading questions - M.R.E. 611(c) - Cautionary instruction - Hearsay - Excessive sentence - Ineffective assistance of counsel - Sufficiency of evidence |
| Summary of the Facts: | James Boggan was convicted of three counts of statutory rape and was sentenced to serve three concurrent thirty year terms. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Jury selection Boggan argues that he was denied a fair trial because over fifty percent of the jurors were female. Boggan's defense counsel never voiced a gender discrimination objection to the State's use of its peremptory challenges. Failure to make a contemporaneous objection to challenges based on gender procedurally barred raising the issue on appeal. In addition, Boggan failed to establish a prima facie case of gender discrimination since defense counsel failed to allege any gender discriminatory objections to the State exercising its peremptory challenges. Issue 2: Jury instructions Boggan argues that certain jury instructions constituted a comment on the evidence. Since Boggan’s failure to object to a number of the instructions procedurally bars his claims. With regard to another instruction, he raises an objection on appeal that is different than that raised at trial. Jury instructions will not be reversed if, when read as a whole, they announce the law of the case and create no injustice. Based on the testimony presented at trial and the facts of the case, the jury instructions given in this case adequately announced the law and created no injustice. Issue 3: Leading questions Boggan argues that the State's use of leading questions to the fifteen-year-old victim denied him a fair trial. The questions about which Boggan now complains were not objected to at trial, and are thus procedurally barred. M.R.E. 611(c) acknowledges that leading questions may be necessary to develop the testimony. Children are a classic example of the kinds of witnesses for whom leading questions may be necessary. Given the victim’s age in this case and the amount of discretion accorded the trial court in permitting leading questions, the court did not abuse his discretion in allowing the victim to testify as she did. Issue 4: Cautionary instruction Boggan argues that the brother of the victim was an accomplice, and therefore, the court should have given the jury a cautionary instruction about his testimony. However, there was no error by the court not giving a cautionary instruction since no request for such instruction was made. Issue 5: Hearsay Boggan argues that testimony by the victim’s mother regarding the victim's confession that she was having sex with Boggan was hearsay. Boggan has not properly preserved this issue for appeal since he failed to object at trial. Issue 6: Excessive sentence Boggan argues that his sentence was excessive. Boggan's sentence of three concurrent thirty year terms for his three counts of statutory rape was well within the sentencing range established by statute. Sentencing that is within the limits prescribed by statute is within the complete discretion of the trial court and is not subject to appellate review. Issue 7: Ineffective assistance of counsel Boggan argues that his attorney's performance was ineffective, because he failed to object to consistently material leading questions, failed to object to hearsay, failed to obtain a limiting instruction on accomplice testimony, failed to cross-examine the doctor concerning his testimony that the victim had a "woman's vagina," failed to exercise peremptory strikes to avoid a jury that contained nine women jurors, and failed to object to assumptions of fact in jury instructions. Although Boggan's current counsel may have made different decisions than his trial counsel, none of the alleged actions or inactions amount to ineffective assistance of counsel. The counsel's decisions that Boggan now complains of were strategic. Issue 8: Sufficiency of evidence Boggan argues that the evidence was insufficient to convict him. The victim testified that she and Boggan had sex on three occasions. Her brother testified that he accompanied his sister on one of the nights when she sneaked out to meet Boggan. Her mother testified that the victim confessed to her that she had been sneaking out to see Boggan and that she had had sex with him. This evidence supported the jury's verdict of statutory rape. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
