Dubose v. State
| Docket Number: | 2008-KA-01170-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-10-2009 Opinion Author: ROBERTS, J. Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Gratification of lust - Juror misconduct - Peremptory challenges - Weight of evidence - Child witness - M.R.E. 601 Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 03-03-2008 Appealed from: Jasper County Circuit Court Judge: Robert G. Evans Disposition: CONVICTED OF COUNT I, GRATIFICATION OF LUST, AND SENTENCED TO TEN YEARS; COUNT II, GRATIFICATION OF LUST, AND SENTENCED TO TEN YEARS TO RUN CONSECUTIVELY TO COUNT I; AND COUNT III, GRATIFICATION OF LUST, AND SENTENCED TO TEN YEARS TO RUN CONSECUTIVELY TO COUNTS I AND II, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: R. Wiley Webb Case Number: 16-19 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | ROBERT DUBOSE A/K/A ROBERT T. DUBOSE, SR. |
BENJAMIN ALLEN SUBER |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL: GLENN WATTS | ||
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: | Gratification of lust - Juror misconduct - Peremptory challenges - Weight of evidence - Child witness - M.R.E. 601 |
| Summary of the Facts: | Robert Dubose was convicted of three counts of gratification of lust and was sentenced to ten years for each count. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Juror misconduct Dubose argues that he was denied a fair and impartial jury because a juror failed, during voir dire, to disclose his relationship to Dubose’s wife, i.e., he was related to the wife's ex-husband. Where a prospective juror in a criminal case fails to respond to a question by defense counsel on voir dire, the court should determine whether the question was relevant to the voir dire examination, whether it was unambiguous, and whether the juror had substantial knowledge of the information sought to be elicited. If all answers to the questions are affirmative, then the court determines if prejudice to the defendant in selecting the jury could be inferred from juror's failure to respond. The record shows that the questions presented during voir dire were relevant questions, and they were not ambiguous. Dubose has offered no motive that the juror may have had for not acknowledging a possible familial relationship with his wife's ex-husband or how he was prejudiced and denied a fair trial. Given that the juror readily acknowledged he recognized the daughter of Dubose's wife, who was presented at trial as a possible witness, it stands to reason, he would have been forthcoming about any other knowledge he may have had concerning the wife and her ex-husband. Thus, the court did not commit reversible error in declining to grant a new trial on this ground. Issue 2: Peremptory challenges Dubose argues that the State used all six of its peremptory strikes to eliminate six African Americans from the venire for racially-motivated reasons. The first juror was eliminated because of inattentiveness. Inattentiveness alone has been accepted as a race-neutral explanation for the exercise of a peremptory strike. The second juror was excluded by the State because she failed to respond to the State’s question of whether any jurors or any member of their family had sexual allegations lodged against them. The State was informed that, at one time, the juror’s husband had been accused of molestation. The likelihood that the juror would have possessed bias due to possible allegations against her husband for the same crime with which Dubose was charged was undoubtedly a race neutral reason. The third juror was struck because the juror paid more attention to defense counsel instead of the State’s counsel, knew one of the potential witnesses, and had several arrests in his family. Race-neutral reasons include having a friend or family member charged with a crime. The fourth and fifth jurors were struck because members of their families had been arrested. Again, this has been accepted as a race neutral reason. The sixth, juror was struck because she knew Dubose from church services, where he played the organ. While there was some dispute as to whether she actually attended the same church as Dubose, any error in the acceptance of the State’s race-neutral reason for striking the juror was harmless. Issue 3: Weight of evidence Dubose argues that there was almost no evidence that Dubose sexually assaulted any of the children. In graphic detail, all three children testified that Dubose had touched them with either his hands, mouth, and/or penis. A pediatrician testified that all three children had injuries consistent with the children’s account of sexual abuse. Dubose emphasizes that the testimony of one of the children regarding the number of times Dubose touched and/or sexually assaulted him varied from the testimony given by the other children. M.R.E. 601 provides that every person is competent to be a witness unless they are incompetent or otherwise restricted. The child was a competent witness. He exhibited the ability to understand and answer questions; he remembered events; and his testimony was consistent with the statements he had made previously. |
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