Burton v. State


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Docket Number: 2005-KA-01735-COA

Court of Appeals: Opinion Link
Opinion Date: 12-04-2007
Opinion Author: IRVING, J.
Holding: Affirmed

Additional Case Information: Topic: Kidnapping, Rape & Armed robbery - Right to speedy trial - Admission of voice identification - Ineffective assistance of counsel - Sufficiency of evidence
Judge(s) Concurring: KING, C.J., LEE, J., P.JJ., CHANDLER, J., GRIFFIS, J., BARNES, J., ISHEE, J., CARLTON, JJ.
Judge(s) Concurring Separately: Roberts, J., specially concurs with separate written opinion, joined by Chandler, Griffis, Ishee and Carlton, JJ..
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 04-01-2004
Appealed from: Hinds County Circuit Court
Judge: Tomie Green
Disposition: CONVICTED OF KIDNAPPING IN COUNT I AND SENTENCED TO SERVE A TERM OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWENTY YEARS TO SERVE, FIVE YEARS SUSPENDED, AND FIVE YEARS OF SUPERVISED PROBATION, AS A HABITUAL OFFENDER; CONVICTED OF ARMED ROBBERY IN COUNT II AND SENTENCED TO SERVE A TERM OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWENTY YEARS TO SERVE, FIVE YEARS SUSPENDED, AND FIVE YEARS OF SUPERVISED PROBATION, AS A HABITUAL OFFENDER, SAID SENTENCE TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I; CONVICTED OF RAPE IN COUNT III AND SENTENCED TO SERVE A TERM OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWENTY YEARS TO SERVE, FIVE YEARS SUSPENDED, AND FIVE YEARS OF SUPERVISED PROBATION, AS A HABITUAL OFFENDER, SAID SENTENCE TO RUN CONSECUTIVELY TO THE SENTENCES IN COUNTS I AND II
District Attorney: Eleanor Faye Peterson
Case Number: 01-0-539

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: DONALD KEITH BURTON A/K/A DONALD WAYNE BURTON




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  • Appellant #1 Brief

  • Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL BY: DEIRDRE MCCRORY  

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    Topic: Kidnapping, Rape & Armed robbery - Right to speedy trial - Admission of voice identification - Ineffective assistance of counsel - Sufficiency of evidence

    Summary of the Facts: Donald Burton was found guilty of kidnapping, rape, and armed robbery and was sentenced to serve twenty-five years, with five years suspended and five years of supervised probation, on each count. He appeals.

    Summary of Opinion Analysis: Issue 1: Right to speedy trial Burton argues that he was denied his constitutional right to a speedy trial. To determine whether a violation has occurred, the court looks to the length of delay, reason for delay, defendant’s assertion of his right, and any resulting prejudice. More than eight months elapsed between Burton’s arrest and his trial which is presumptively prejudicial. The first delay was caused by Burton’s federal prosecution. Therefore, this delay was for good cause. The next delay was caused by Burton’s attorney’s request for a continuance and is not attributable to the State. The next delay was a result of the court’s docket and was therefore with good cause, as was the last delay when the State’s witnesses were unavailable for trial. Therefore, this factor does not weigh strongly in favor of either Burton or the State. Burton never demanded a speedy trial. The record belies Burton’s allegations of prejudice to his case. Even though the length of time in this case created a presumption of prejudice, such a presumption is not sufficient to weigh in favor of Burton in light of his inability to show any actual prejudice. Given these factors, Burton was not denied his constitutional right to a speedy trial. Issue 2: Admission of voice identification Burton argues that the victim’s identification of his voice was the result of a tainted and impermissibly suggestive in-court confrontation. The pretrial identification by the victim, whether intended or not, was unjustifiably suggestive. She had been told that her attacker, Burton, would be appearing in court, and she then went to court to observe Burton. During the attack, the victim had ample opportunity to observe the attacker’s voice and speech. Her attacker spoke almost continuously throughout the incident, which she estimated lasted around forty-five minutes. There is no indication that the victim had anything other than her assailant on which to focus her attention during the assault. The victim’s description of the attacker’s voice is not particularly specific. The victim was quite certain that the voice she heard at the pretrial identification belonged to her assailant. Nearly eight months elapsed between the victim’s assault and her identification of Burton in court. Eight months is a long period of time over which to recall a voice heard for less than an hour. However, the victim had ample opportunity to observe Burton’s voice, she devoted a high degree of attention to his voice, and she was very certain in her identification of Burton as her assailant. Under these circumstances, the court did not err in allowing the admission of the identification. Issue 3: Ineffective assistance of counsel Burton argues that his counsel failed to properly investigate his case. Given the record and arguments, it is impossible to determine whether there is any validity to these claims. Burton also argues that his attorney should have filed a motion for continuance for lack of opportunity to prepare for trial. The record is not complete for review of this claim. Burton argues that his attorney was ineffective for failing to formally assert his Constitutional right to a speedy trial. The decision as to whether to file such a motion falls under the ambit of acceptable trial strategy. Burton argues that his counsel was ineffective for failing to suppress the 911 tape that was played for the jury. Even had such a motion been filed, it would have been denied. Burton cannot have suffered prejudice to his case as a result of the non-filing of a motion that would have been denied. Burton argues that his attorney was ineffective for failing to require the court to conduct a hearing pursuant to Polk v. State, 612 So. 2d 381 (Miss. 1992). The waiver of the hearing was clearly a matter of trial strategy, and furthermore was explained to Burton by his counsel. Burton argues that his counsel failed to call a DNA expert to rebut the State’s DNA evidence. A more than reasonable assumption to be drawn from trial counsel’s failure to call the witness is that the expert had nothing to say that would help Burton. Issue 4: Sufficiency of evidence Burton challenges the sufficiency of the evidence supporting his conviction, because the identification of his fingerprints was suspect. The decision of the expert not to look at the other nineteen fingerprints after a positive identification had been made does not render the evidence in this case insufficient. Burton also points out that none of the State’s experts were able to conclusively identify Burton as the contributor of DNA samples taken from the victim and her clothing. While this is true, the experts were also unable to exclude Burton as the contributor of many of the samples. Clearly, the meaning of this evidence was for the jury to determine as fact-finder. Burton argues that the victim’s voice identification of him was unreliable. Although the identification was suggestive, the reliability of the identification indicates that it was properly admitted and considered by the jury. The evidence in this case is more than sufficient to prove each of the elements of robbery, kidnapping, and rape.


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