Rogers v. State
| Docket Number: | 2004-KA-01512-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 05-04-2006 Opinion Author: Easley, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Rape - Ex post facto clause - Sentence - Section 97-3-67 - Section 97-3-65 - Age of victim - Closing argument - Priest-penitent privilege - M.R.E. 505 - Right of confrontation - Admission by silence - M.R.E. 801(d)(2)(B) Judge(s) Concurring: Smith, C.J., Waller, P.J., Carlson, Graves and Dickinson, JJ. Non Participating Judge(s): Diaz and Randolph, JJ. Concurs in Result Only: Cobb, P.J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 08-23-2002 Appealed from: Franklin County Circuit Court Judge: Forrest Johnson Disposition: Appellant was convicted of rape and sentenced to thirty (30) years on three counts. District Attorney: Ronnie Lee Harper Case Number: 02-KR-016 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Derwin Rogers |
PAMELA A. FERRINGTON |
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| Appellee: | State of Mississippi | OFFICE OF ATTORNEY GENERAL BY: SCOTT STUART |
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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: | Rape - Ex post facto clause - Sentence - Section 97-3-67 - Section 97-3-65 - Age of victim - Closing argument - Priest-penitent privilege - M.R.E. 505 - Right of confrontation - Admission by silence - M.R.E. 801(d)(2)(B) |
| Summary of the Facts: | Derwin Rogers was convicted on four counts of rape. He was sentenced to thirty years on each count, to run concurrently. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Ex post facto The indictment charged a violation of section 97-3-67. On the day of trial, the State moved to amend the indictment to list section 97-3-65, since section 97-3-67 had been repealed. The State argued that the surplus language requiring the victim to be of previous chaste character should be eliminated since that language has been included in the repealed statute. The trial court allowed the amendment. Rogers argues that the penalty for his crime was erroneously raised by the state and therefore, the court violated the expost facto clause of the Constitution by imposing a thirty year sentence pursuant to section 97-3-65. Rogers waived this issue for consideration on appeal by not raising a constitutional challenge at trial. In addition, the defense did not raise any objection to the amendment of the statute contained in the indictment. Rather, the defense sought clarification that because these were charges of forcible rape the defense of consent would be applicable at trial under section 97-3-65. Also, the sentence imposed by the trial court was acceptable as it did not exceed the statutory limits provided in section 97-3-65 (2). Therefore, Rogers’ argument that he was sentenced to more time than was applicable at the time of his offense is without merit. Issue 2: Age of victim Rogers argues that the State was required under section 97-3-65 to establish that the victim was between the ages of fourteen and sixteen but failed to do so. The section that Rogers cites applies to statutory rape, not forcible rape. However, this case involved forcible rape without consent and against the victim’s will. In addition, the record shows that the State established that at the time of the incident, the victim was at least fourteen years old. Issue 3: Closing argument Rogers argues that the State in its closing remarks improperly commented on his failure to testify at trial. The record shows that the defense never raised any contemporaneous objection to the statements in question. In addition, the State’s closing remarks were made in reference to the facts in evidence, not Rogers’ failure to testify at trial or that he was guilty based on his failure to testify. Issue 4: Priest-penitent privilege Rogers argues that the court erred in allowing Reverend Franklin to testify about a conversation Pastor Hankins had with him regarding Rogers’ admission that he had sex with the victim, because M.R.E. 505 prevented Reverend Franklin from disclosing the conversation as it was a confidential communication protected by priest-penitent privilege. The record shows that the disclosure by Pastor Hankins to Reverend Franklin was not confidential. Rogers never took any action to prevent the disclosure or to deny or correct the disclosure. Furthermore, the information regarding the admission by Rogers that he had sex with the victim had already been disclosed by Rogers to Reverend Franklin in a telephone conversation approximately two weeks before this meeting occurred. M.R.E. 505(2)(b) requires that in order for a privilege to exist the communication must have been made to a clergyman in his professional character as spiritual adviser. Reverend Franklin testified that he did not consider himself to be Rogers’ spiritual adviser nor that the communication was made to him as a confidential confession. Furthermore, Pastor Hankins’ disclosure to Reverend Franklin was clearly not confidential, since disclosure of confidential information or communication in the presence of third parties generally operates to waive any privilege. Reverend Franklin’s wife, among others, were present when the statement was made. Issue 5: Right of confrontation Rogers argues that his constitutional right of confrontation was violated by the trial court allowing Reverend Franklin to testify as to Pastor Hankins’ disclosure that Rogers admitted he had sex with the victim. The record contains no reference to any alleged violation of any right to confrontation or for the trial court to make a ruling regarding the confrontation clause. In addition, Rogers’ admission to Reverend Franklin and Pastor Hankins that he had sex with the victim were not admissions that he raped the victim. Also, Rogers made the same admission to Reverend Franklin in a telephone conversation that occurred approximately two weeks prior to the meeting that occurred between Reverend Franklin and Pastor Hankins. Furthermore, Reverend Franklin and Pastor Hankins were not alone at the meeting when the statement was made. Rogers never took any action to prevent the statement from being made public or made any attempt to clarify the statement or to state that it was untrue. M.R.E. 801(d)(2)(B) states that admission by silence is a hearsay exception where the statement is offered against a party and is a statement of which he has manifested his adoption or belief in its truth. |
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