Ben v. State
| Docket Number: | 2009-CT-01495-SCT Linked Case(s): 2009-CA-01495-COA ; 2009-CA-01495-COA ; 2009-CT-01495-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 08-23-2012 Opinion Author: Waller, C.J. Holding: Affirmed the Court of Appeals and the Circuit Court. |
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| Additional Case Information: |
Topic: Rape - Right to speedy trial - Discovery violation - URCCC 9.04(A)(1) - Admission of testimony - M.R.E. 803(3) - M.R.E. 801(d)(1)(B) - Comment on victim’s veracity - Sufficiency of evidence Judge(s) Concurring: Carlson, P.J., Randolph, Lamar and Pierce, JJ. Dissenting Author : Dickinson, P.J. Dissent Joined By : Kitchens, Chandler and King, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY Writ of Certiorari: Granted Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 05-14-2009 Appealed from: Leake County Circuit Court Judge: Vernon Cotten Disposition: Appellant was convicted of rape and sentenced to life imprisonment. District Attorney: Mark Sheldon Duncan Case Number: 08-CR-105-LE-C |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Cecil R. Ben |
JULIE ANN EPPS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: W. GLENN WATTS |
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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. |
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| Topic: | Rape - Right to speedy trial - Discovery violation - URCCC 9.04(A)(1) - Admission of testimony - M.R.E. 803(3) - M.R.E. 801(d)(1)(B) - Comment on victim’s veracity - Sufficiency of evidence |
| Summary of the Facts: | Cecil Ben was convicted of rape and sentenced to life imprisonment. The Court of Appeals affirmed his conviction and sentence. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | Issue 1: Right to speedy trial Ben argues that much of the delay in bringing him to trial was attributable to the State’s “inexcusable delay” in submitting DNA evidence for testing and that the Court of Appeals incorrectly found that he was not prejudiced by the failing memories of some potential witnesses. Factors to consider whenever a defendant alleges that his constitutional right to a speedy trial has been violated include the length of delay; the reason for the delay; whether the defendant asserted his right; and prejudice to the defendant. Ben was arrested on October 19, 2007, and remained incarcerated until November 5, 2007, when he posted bail. His trial began May 11, 2009. This amounted to a delay of more than eighteen months or about 570 days, which is presumptively prejudicial. The trial court attributed the delay in this case to the evidence-gathering process and the timing and limited number of grand-jury sittings in Leake County. Ben argues that the delay in acquiring the DNA-testing results was not a product of the testing process but was caused by the State’s delay in submitting the necessary evidence to the crime lab. However, this is not supported by the record. The State submitted the paper towels and the victim’s clothing to the crime lab soon after it had acquired those items. And soon after the crime lab’s initial report showed the presence of seminal fluid on the paper towels, the State obtained blood samples from Ben and had further DNA analysis done. The State did not wait an inexcusable length of time in submitting evidence for testing. The record further shows that Ben requested a continuance. Accordingly, this factor weighs only marginally against the State. A large portion of the delay in this case occurred post-arrest, preindictment. Nevertheless, defendants have the responsibility to demand a speedy trial between their arrest and their indictment. A defendant’s failure to do so in such instances is critical to an analysis of the speedy-trial issue. Ben filed a Motion to Assert Defendant’s Right to a Speedy Trial and Dismissal of the Indictment for Violation of his Right to a Speedy Trial about fifteen months after his arrest and two months after his indictment. In his motion, Ben both requested a speedy trial and sought dismissal of his indictment based on a speedy-trial violation. The context and timing of the motion shows that he was actually seeking dismissal, not a trial. Ben’s motion, therefore, is best characterized as a demand for dismissal coupled with a demand for an instant trial, which he filed after the bulk of the delay had elapsed. Accordingly, this factor weighs against Ben. Ben argues that his defense was prejudiced because of the fading memories of some potential witnesses. Though he cannot necessarily be faulted for waiting until after his indictment to interview these potential witnesses, he had the opportunity and incentive to interview them before then. Regardless, mere possibility of prejudice is not sufficient to support a speedy-trial violation. These passengers may or may not have testified favorably for Ben; their testimony, had they been able to recall the events of that day, remains speculative. Ben further argues that he was prejudiced by restraints to his liberty. Ben was suspended from, and eventually lost, his job as a result of his arrest. And he was unable to find employment elsewhere due to the allegations against him. He also says he suffered a great deal of anxiety and was viewed with suspicion as he awaited indictment and then trial. Due to the restraints imposed on his liberty, Ben is entitled to a slight degree of prejudice. The minimal prejudice here and the fact that Ben did not want a speedy trial leads to the conclusion that Ben’s constitutional right to a speedy trial was not violated. Issue 2: Discovery violation A witness testified about a statement Ben had made two days before the alleged rape. On appeal, Ben argued that this statement had not been disclosed during discovery. The Court of Appeals stated that the trial court had noted that Ben had been notified of the State’s intent to use the witness approximately five months before trial. Further, it held that the issue was procedurally barred because Ben had failed to move for a continuance at trial. URCCC 9.04(A)(1) requires the State, upon written request, to disclose the identity of its witnesses in chief and the substance of their written or oral statements. Rule 9.04(I)(1)-(3) outlines the procedure that trial courts must follow when faced with an undisclosed discovery violation during trial. A violation of Rule 9.04 is considered harmless error unless it affirmatively appears from the entire record that the violation caused a miscarriage of justice. In this case, the procedure set forth in Rule 9.04(I)(1)-(3) was not followed. Thus, Ben did not waive the discovery-violation issue. However, the error was harmless. Based on the entirety of record, including the physical evidence, the victim’s testimony, and the fact that the witness was identified months before trial, the trial court did not err in failing to grant a continuance or admitting Ben’s remark to the witness. Issue 3: Admission of testimony Ben argues that the Court of Appeals erred in finding that the admission of a witness’s hearsay testimony was harmless error. At trial, the witness testified that the victim had told him that she had been raped by Ben. The trial court admitted the testimony under M.R.E. 803(3). The Court of Appeals correctly found that Rule 803(3) does not apply here. However, the Court of Appeals erred in finding that the testimony was clearly hearsay because it was offered to prove that Ben had raped the victim. The victim’s prior statements served a purpose other than to prove the truth of the matter asserted; they rehabilitated the victim as a witness and were admissible for that purpose. On cross-examination, Ben tried to show that the victim had fabricated the rape allegation. He attempted to cast doubt on her direct testimony by questioning her about the specific details of the incident. M.R.E. 801(d)(1)(B) provides that a statement is not hearsay if the declarant testifies at trial; he or she is subject to cross-examination about the statement; the statement is consistent with the declarant’s trial testimony; and the statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. An additional requirement for admissibility under Rule 801(d)(1)(B) is that the consistent statements must have been made prior to the arising of the alleged motive to fabricate. Here, Ben never developed or explained what had motivated the victim to fabricate such charges. Thus, the victim’s statements to the witness were admissible to rehabilitate her credibility as a witness. Issue 4: Comment on victim’s veracity Ben argues that the nurse’s comment on the victim’s veracity was improper. This issue is procedurally barred because of Ben’s failure to make a contemporaneous objection at trial. Issue 5: Sufficiency of evidence Ben argues that the only evidence to support the use of force was the victim’s uncorroborated, contradictory testimony, and her behavior was not consistent with that of a rape victim. An individual may be found guilty of rape on the uncorroborated testimony of the prosecuting witness, where the testimony is not discredited or contradicted by other credible evidence. Here, the victim’s testimony was not uncorroborated. Though use of force was not corroborated, other facts surrounding the incident were. Any inconsistencies in the victim’s trial testimony were issues for the jury to resolve. There was sufficient evidence for a rational trier of fact to find Ben guilty of forcible rape. |
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