Lowe v. State
| Docket Number: | 2011-KA-00762-COA Linked Case(s): 2011-KA-00762-COA ; 2011-CT-00762-SCT ; 2011-CT-00762-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-18-2012 Opinion Author: Carlton, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Exploitation of children - Funds for expert witness - Voir dire of expert - M.R.E. 702 - Weight of evidence Judge(s) Concurring: Lee, C.J., Irving, P.J., Barnes, Roberts, Maxwell and Fair, JJ. Dissenting Author : Ishee, J. Dissent Joined By : Griffis, P.J., and Russell, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 04-13-2011 Appealed from: Jones County Circuit Court Judge: Billy Joe Landrum Disposition: CONVICTED OF FIVE COUNTS OF EXPLOITATION OF A CHILD AND SENTENCED AS A HABITUAL OFFENDER TO LIFE IMPRISONMENT ON EACH COUNT, WITH THE SENTENCE IN COUNT I TO RUN CONSECUTIVELY TO THE SENTENCES IN THE OTHER COUNTS, AND THE SENTENCES IN COUNTS II, III, IV, AND V TO RUN CONCURRENTLY WITH EACH OTHER, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Anthony J. Buckley Case Number: 2009-343-KR2 |
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| Party Name: | Attorney Name: | |||
| Appellant: | John Bartholemew Lowe a/k/a John B. Lowe |
LESLIE S. LEE
MICHAEL DUANE MITCHELL
HUNTER NOLAN AIKENS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LISA LYNN BLOUNT |
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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: | Exploitation of children - Funds for expert witness - Voir dire of expert - M.R.E. 702 - Weight of evidence |
| Summary of the Facts: | John Lowe was convicted of five counts of exploitation of children and sentenced as a habitual offender to life imprisonment on each count. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Funds for expert Lowe argues the trial court erred by refusing to provide him a computer forensics expert to assist in the preparation of his defense and to rebut the testimony of the State's expert since the State’s case depended almost entirely on their expert’s testimony. Upon a showing of substantial need, expert assistance should be granted. Undeveloped assertions of helpfulness to the defense are insufficient to show that need. In this case, the record shows that the defense was provided access to interview and question the State's computer expert and that defense counsel admitted that he had met with the State's expert. Defense counsel failed to provide the trial court with any issue, element, or testimony needed by the defense from the expert, instead telling the court that he did not know what questions to ask the expert. During the hearing on the request for an expert, the defense failed to articulate an issue, an element, or any desired testimony requiring independent expert assistance. The defense proffered only undeveloped general assertions to the trial judge as the basis for the request. Thus, there was no abuse of discretion in the trial court’s denial of the request. Issue 2: Voir dire of expert Lowe argues the trial court erred by refusing to permit defense counsel to voir dire the State’s expert witness in the presence of the jury. The proper procedure and policy when an expert witness is offered is for the trial court to permit qualification by the party offering the expert witness, and then to permit voir dire by the opposite party before ruling on the competency of the witness. However, the failure to follow this procedure does not per se constitute reversible error. Voir dire cross-examination of a witness unquestionably qualified to give expert testimony is unnecessary when such cross-examination would add nothing to the trial. The record shows that after the trial court accepted the witness as an expert during a hearing outside of the presence of the jury, the trial court still provided the defense the opportunity to cross-examine the expert during the course of trial and in the presence of the jury. The record also shows that the trial court placed no constraints on the defense’s cross-examination. A hearing was held outside of presence of the jury to determine whether the witness possessed qualifications sufficient to render him an expert in the field of computer forensics. Under M.R.E. 702, the gate-keeping decision as to whether a proffered witness qualifies as an expert witness belongs to the trial judge, not the jury. Accordingly, this issue is without merit. Issue 3: Weight of evidence The State provided ample evidence to support a conviction. The evidence at trial established that Lowe was the owner of the computer and logged in using the name “Muzicman.” The jury heard the testimony of the State’s computer forensics expert, who found that the images allegedly depicting children engaged in sexual activity were downloaded by an individual using the name “Muzicman.” The record reflects no evidence to establish that anyone other than Lowe logged in using that name. The record also shows that Lowe was at work on the day the material was downloaded, and there was evidence that multiple internet connections were available in areas surrounding his place of employment. Thus, he possessed the apparent ability and opportunity to download the material while at work. Testimony presented at trial revealed that once the sheriff’s department began investigating the images on Lowe’s computer, Lowe left his job without completing his work and without clocking out; Lowe abandoned his car, and then he fled the state. All of these facts support the jury’s verdict. |
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