Poynor v. State


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Docket Number: 2005-KA-01919-COA
Linked Case(s): 2005-CT-01919-SCT2005-KA-01919-COA
Oral Argument: 09-26-2006
 

 

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Court of Appeals: Opinion Link
Opinion Date: 05-01-2007
Opinion Author: ISHEE, J.
Holding: Affirmed

Additional Case Information: Topic: Statutory rape & Child fondling - Defective indictment - Expert testimony - Bias of witnesses - Jury instructions - Ineffective assistance of counsel
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES AND ROBERTS, JJ.
Non Participating Judge(s): CARLTON, J.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 10-07-2005
Appealed from: PANOLA COUNTY CIRCUIT COURT
Judge: Andrew C. Baker
Disposition: CONVICTED OF COUNT ONE, STATUTORY RAPE, AND COUNT THREE, CHILD FONDLING, AND SENTENCED TO SERVE TEN YEARS, WITH FIVE YEARS SUSPENDED, FOR COUNT ONE, AND FIVE YEARS SUSPENDED FOR COUNT THREE, WITH BOTH SENTENCES TO BE SERVED CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.
District Attorney: John W. Champion
Case Number: CR-2005-45-B-P(2)

Note: The motion for rehearing is denied, and the original opinion in this appeal is withdrawn, and this opinion is substituted in lieu thereof.

  Party Name: Attorney Name:  
Appellant: JOHN POYNOR, SR.




ALISON OLIVER KELLY ROBERT L. WILLIAMS ELIZABETH PAIGE WILLIAMS



 

Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL BY: W. GLENN WATTS  

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Topic: Statutory rape & Child fondling - Defective indictment - Expert testimony - Bias of witnesses - Jury instructions - Ineffective assistance of counsel

Summary of the Facts: The motion for rehearing is denied, and this opinion is substituted for the original opinion. Poynor was sentenced to ten years, with five years suspended, for statutory rape, and five years for child fondling, with both sentences to be served consecutively. He appeals.

Summary of Opinion Analysis: Issue 1: Defective indictment Poynor argues that the indictment was fatally flawed because it cited section 97-3-65(1)(a), but used the language of section 97-3-65(1)(b). Poynor has waived this issue because he failed to raise this issue in the court below. In addition, the indictment was not so flawed as to warrant reversal. Issue 2: Expert testimony Poynor argues that a doctor’s testimony was inadmissible because she was not properly qualified as an expert witness and because her testimony regarding the general characteristics of other child sexual abuse victims was improper. The Mississippi Supreme Court has refused to hold that an expert was not properly qualified when the opposing party did not object to the witness’s credentials but only to the testimony. Because Poynor failed to object to the doctor’s qualification as an expert, he is procedurally barred from raising this issue on appeal. In addition, the doctor did not make improper generalizations about child abuse victims. Experts may not testify as to a syndrome commonly associated with children who have been sexually abused, but can testify as to common characteristics of sexually abused children. Issue 3: Bias of witnesses Poynor argues that the court erred in not allowing him to demonstrate the bias or prejudice of witnesses in this case. The court did not abuse its discretion in determining that the Mother’s motive was a collateral matter that would not help the jury decide whether the statutory rape or fondling occurred. Issue 4: Jury instructions Poynor argues that the court erred in giving two jury instructions and in refusing to grant one jury instruction. He argues that the court failed to restrict the evidence to its proper scope and instruct the jury accordingly, as required by M.R.E. 105. Poynor made his theory of defense clear to the jury through the testimony of the victims. Issue 5: Ineffective assistance of counsel Poynor argues that his trial counsel was ineffective because he should have considered requesting the following: severance of the charges, a M.R.E. 803(25) hearing outside the presence of the jury to determined the admissibility of hearsay testimony given by the social worker from the Department of Human Services who interviewed the victim, and a jury instruction that the proof in count two was insufficient to prove the crime charged in count two. The record reflects that Poynor’s trial counsel filed numerous pre-trial motions, including his successful motion to offer evidence of past sexual behavior, and that trial counsel presented numerous witnesses in Poynor’s defense. The record further reflects that Poynor’s trial counsel succeeded in having count two of the indictment dismissed. Poynor does not demonstrate how he was prejudiced by his counsel’s alleged errors. Consequently, Poynor has not overcome the presumption that his attorney’s performance fell within a wide range of reasonably professional assistance and that the decisions made by his attorney were strategic.


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