Mingo v. State
| Docket Number: | 2005-KA-01238-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 12-07-2006 Opinion Author: Waller, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Fondling - Illegal arrest - Admissibility of statement - Issuance of subpoenas - Peremptory challenges - Admission of video - Expert witness - Prior bad acts - M.R.E. 404(b) - Rebuttal testimony - Change of venue - Recusal - Sufficiency of evidence - Cruel and unusual punishment Judge(s) Concurring: Smith, C.J., Cobb, P.J., Diaz, Carlson, Dickinson and Randolph, JJ. Non Participating Judge(s): Easley, J. Concur in Part, Dissent in Part 1: Graves, J., without separate written opinion Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 05-26-2005 Appealed from: Lowndes County Circuit Court Judge: James T. Kitchens, Jr. Disposition: A Lowndes County jury convicted Julian Mingo of three counts of fondling a fifteenyear- old boy. Mingo was sentenced to three ten-year terms of imprisonment, to be served consecutively, followed by five years of post-release supervision. District Attorney: FORREST ALLGOOD Case Number: 2004-0601-CR1 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Julian Mingo |
CHARLES E. MILLER |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JOHN R. HENRY |
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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: | Fondling - Illegal arrest - Admissibility of statement - Issuance of subpoenas - Peremptory challenges - Admission of video - Expert witness - Prior bad acts - M.R.E. 404(b) - Rebuttal testimony - Change of venue - Recusal - Sufficiency of evidence - Cruel and unusual punishment |
| Summary of the Facts: | Julian Mingo was convicted of three counts of fondling a fifteen-year-old boy. Mingo was sentenced to three ten-year terms of imprisonment, to be served consecutively, followed by five years of post-release supervision. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Illegal arrest Mingo argues that his arrest was without probable cause since it was based solely on the testimony of the victim. The record shows that Mingo voluntarily agreed to give a statement and was not arrested until after he had given the statement. The statements of the victim and Mingo’s own corroboration were more than sufficient to establish probable cause. Even if Mingo had been arrested in response to the victim’s statement, Mingo cites no authority for the principle that a witness’ testimony is insufficient to establish probable cause. Issue 2: Admissibility of statement Mingo argues that his statement to police before his arrest is inadmissible because he was not properly given his Miranda warnings. If a person is determined not to be in custody and is not being interrogated, the Miranda protections do not attach. Voluntary statements made by a defendant do not trigger the requirements of Miranda. Mingo voluntarily went to the police station, was told about the victim’s accusations, and agreed to give a statement to police. He was not placed under arrest before questioning, and the officers emphasized that he was free to end his questioning at any time. Given these circumstances, Mingo was not “in custody” and, therefore, was not entitled to the Miranda protections. Issue 3: Subpoenas Mingo argues that the court erred in denying him access to his personal notes and documents contained in his desk and to the records of a company that worked at the academy. The record indicates that the trial judge was willing to issue a limited subpoena duces tecum for any personal writings of Mingo held by the school, but denied Mingo access to the victim’s school record. The court issued the limited subpoena, but it does not appear that the school withheld any of Mingo’s personal writings. With regard to the company’s records, the judge properly denied the subpoena as irrelevant to the case. Issue 4: Peremptory challenges Mingo argues that it was error for the court to allow the striking of four African-American veniremen. The first was struck because he lived in a high-crime area; the second, because she had written a number of bad checks and had been referred to the district attorney’s bad check unit; the third, because she failed to indicate that she had a son on probation when asked by the State; and the fourth, because she had a written bad checks and had been referred to the district attorney’s bad check unit, and because she had a friend or close relative who was being prosecuted by the district attorney. Each of these reasons has been recognized by the Court as race-neutral. Issue 5: Admission of video Mingo argues that the admission of the video of victim’s statement to the police violated the confrontation clause of Sixth Amendment. Because Mingo did not claim a constitutional violation in the trial court, he is procedurally barred from doing so here. Even if Mingo had properly preserved the issue for appeal, his claim is without merit. The victim testified at the trial, and Mingo had the opportunity to extensively cross-examine him; therefore his right to confront witnesses against him was not violated. Issue 6: Expert witness The day before the trial began, Mingo provided the prosecution with the name of a proposed expert witness on voice training. He now argues that the court erred in excluding the expert. It is appropriate to exclude a witness’s testimony where the failure to present the witness in a timely manner is willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence. The court did not abuse its discretion in finding that the belated presentation of Mingo’s expert was motivated by a desire to obtain a tactical advantage. Issue 7: Prior bad acts Mingo argues that the court erred in admitting an eight millimeter videotape seized from his home that depicted a young male engaged in a sexually explicit act, because it was evidence of prior bad acts in violation of M.R.E. 404(b). When the State first moved to introduce the videotape as a part of its case-in-chief, the trial judge found it inadmissible under M.R.E. 404(b) and emphasized that the tape could not be used to prove that Mingo had homosexual tendencies because Mingo had not denied that he did. The trial judge ultimately admitted the videotape as an exception to M.R.E. 404(b) to show intent and absence of mistake because Mingo claimed on direct examination that, if he had touched the victim inappropriately, he had done so accidentally. Because the videotape was not admitted as evidence of prior bad acts, this claim is without merit. Issue 8: Rebuttal testimony Mingo argues that the admission of the rebuttal testimony of two witnesses was erroneous because their names had not been disclosed during discovery. The testimony of the rebuttal witnesses was introduced to rebut specific facts alleged by Mingo during direct and cross-examination. The trial judge did not abuse his discretion in admitting the testimony. Issue 9: Change of venue Mingo argues that the court improperly denied his motion for a change of venue. Mingo’s motion is both procedurally barred and substantively without merit. Mingo’s motion was not in writing, was not supported by the affidavits of two or more credible persons, and was therefore procedurally barred. In addition, the trial court found that the allegations of judicial bias were unfounded, that the sheriff’s department had not been uncooperative, that third-hand evidence of threats against one of Mingo’s witnesses was inadmissible hearsay, and that the jury had affirmed during voir dire testimony that media coverage of Mingo’s trial would not affect their impartiality. Issue 10: Recusal Mingo argues that the court erred in denying his motion for the trial judge to recuse himself. Mingo cites no authority to show that adverse rulings by a trial judge indicate bias. The record contains no indication that the trial judge was unreceptive or dismissive of Mingo’s arguments. Mingo attempted to interject the issue of race into his case without preparing an evidentiary foundation for doing so. The trial court was correct in holding Mingo to the rules of discovery. Also, defense counsel’s refusal to continue with trial clearly constituted an action tending to prevent the orderly administration of justice. The trial judge’s decision to hold counsel in direct criminal contempt, while serious, was within his discretion. Issue 11: Sufficiency of evidence Mingo argues that the evidence was insufficient to support a conviction. The State proffered direct evidence in the form of the victim’s testimony and Mingo’s statement to police. Though no direct evidence was presented that Mingo touched the victim specifically to satisfy his lustful desires, such recognition may arise from the circumstances of the encounter itself. Taking all the evidence supporting the verdict as true, together with all inferences, it is clear that a reasonable juror could have found Mingo guilty. Issue 12: Cruel and unusual punishment Mingo argues that his three ten-year sentences, to be served consecutively, are disproportionate to the crime. Generally, sentences that do not exceed the maximum term allowed by statute will not be considered grossly disproportionate and will not be disturbed on appeal. The sentences imposed by the trial judge in the present case are within the limits set by statute, and the decision to have the sentences run consecutively was within the sound discretion of the judge. |
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