Forrest v. State
| Docket Number: | 2002-KA-00206-COA Linked Case(s): 2002-CT-00206-SCT ; 2002-KA-00206-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-20-2004 Opinion Author: Griffis, J. |
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| Additional Case Information: |
Topic: Rape & Auto theft Motion to suppress Independent expert Right to speedy trial Mistrial Attempt to flee Cross examination Judge(s) Concurring: McMillin, C.J., Southwick, P.J., Bridges, Thomas, Lee, Irving, Myers, Chandler and Griffis, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 12-06-2001 Appealed from: Jones County Circuit Court Judge: Billy Joe Landrum Disposition: COUNT I - RAPE: SENTENCED TO LIFE. COUNT II - RAPE: SENTENCED TO LIFE. THE SENTENCE IN COUNT II IS TO RUN CONSECUTIVELY TO SENTENCE IN COUNT I. COUNT III - AUTO THEFT: SENTENCED TO A PERIOD OF 5 YEARS. THE SENTENCE IN COUNT III IS TO RUN CONSECUTIVELY TO SENTENCE COUNT II. District Attorney: C. Grant Hedgepeth Case Number: 2001-10-KR1 |
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| Note: | The motion for rehearing filed by the appellee is denied. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Irvin Forrest |
WILLIAM E. PHILLIPS
DAVID M. RATCLIFF |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: JEAN SMITH VAUGHAN |
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| Topic: | Rape & Auto theft Motion to suppress Independent expert Right to speedy trial Mistrial Attempt to flee Cross examination |
| Summary of the Facts: | The motion for rehearing is denied, and this opinion is substituted for the original opinion. Irvin Forrest was convicted of two counts of rape and one count of auto theft. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Motion to suppress Forrest argues that the court erred in denying his pre trial motion to suppress DNA evidence, because the collection of his DNA samples was an illegal search and seizure. Forrest argues that after he invoked his right to counsel and declined questioning, the officer re initiated questioning to obtain consent to collect the DNA evidence, without again advising him he could refuse to cooperate. When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police initiated custodial interrogation even if he has been advised of his rights. The seizure of evidence that is of a scientific nature, and that is not of a communicative nature, is not protected by the right against self incrimination. Although Forrest's consent was improperly obtained in violation of the constitutional right against self incrimination, the error is harmless since the evidence obtained is not the type protected by this right. Issue 2: Independent expert Forrest argues that the court erred in denying his motion for funds with which to hire an independent expert to analyze the DNA evidence. However, Forrest’s counsel indicated that Forrest was not seeking independent testing and had not contacted, and could not identify, any expert he wished to use. Therefore, the court’s denial was not an abuse of discretion. Issue 3: Speedy trial Forrest argues that his constitutional speedy trial right was denied. The court must consider the length of the delay, reason for the delay, defendant's assertion of his right, and any resulting prejudice. The length of the delay was 589 days. The reason for the delay was a delay in analyzing the DNA evidence because of the need to obtain private testing. Forrest did not assert his right outside of his motion to dismiss with prejudice. Forrest has failed to show how the denial prejudiced his defense. On these facts, there is no showing of a constitutional deprivation of a speedy trial. Issue 4: Mistrial Prior to trial, the court stated that if a witness used the word "rape," it would take necessary corrective action, including dismissal, if required. Forrest argues that two separate statements by a deputy involving the word "rape" required dismissal. Trial courts are granted discretion in determining if testimony is so prejudicial as to require a mistrial. In the first instance, the statement was merely an account of what happened when a witness observed the victims. In the second instance, nothing suggests such irreparable prejudice that could have denied Forrest a fair trial arose from learning that an officer was dispatched to "the double rape." Forrest also argues that the use of the word ‘kidnapping’ required a mistrial because he was not charged with kidnapping. The court sustained his objection, and Forrest failed to request a cautionary instruction or mistrial. Where a court sustains an objection, the failure to both request a cautionary instruction and move for a mistrial generally waives the issue. Issue 5: Attempt to flee Forrest argues that testimony concerning his attempt to flee was prejudicial. Given the overall testimony, an isolated remark could not have been so prejudicial as to require a mistrial. Issue 6: Cross examination Forrest argues that the court erred in restricting testimony of the State’s expert concerning the victim’s recent sexual contact. Because the DNA expert was unable to state whether the victim had earlier engaged in sexual intercourse, the court did not abuse its discretion in determining the evidence inadmissible. |
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