Ben v. State
| Docket Number: | 2009-CA-01495-COA Linked Case(s): 2009-CA-01495-COA ; 2009-CT-01495-SCT ; 2009-CT-01495-SCT |
|
| Court of Appeals: |
Opinion Link Opinion Date: 05-31-2011 Opinion Author: Lee, C.J. Holding: Affirmed. |
|
| Additional Case Information: |
Topic: Forcible rape - Right to speedy trial - Peremptory challenges - Hearsay - M.R.E. 803(3) - Discovery violation - Sufficiency of evidence - Disproportionate sentence - Section 97-3-65(4)(a) Judge(s) Concurring: Griffis, P.J., Barnes, Ishee, Roberts, Carlton and Maxwell, JJ. Non Participating Judge(s): Myers and Russell, JJ. Concur in Part, Concur in Result 1: Irving, P.J. Without Separate Written Opinion Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY Writ of Certiorari: Granted Appealed from Court of Appeals |
|
| Trial Court: |
Date of Trial Judgment: 05-14-2009 Appealed from: Leake County Circuit Court Judge: Vernon Cotton Disposition: Convicted of Rape and Sentenced to Life in the Custody of the Mississippi Department of Corrections District Attorney: Mark Sheldon Duncan Case Number: 08-CR-105-LE-C |
|
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Cecil R. Ben |
JULIE ANN EPPS |
|
|
| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: W. 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. |
|
| Topic: | Forcible rape - Right to speedy trial - Peremptory challenges - Hearsay - M.R.E. 803(3) - Discovery violation - Sufficiency of evidence - Disproportionate sentence - Section 97-3-65(4)(a) |
| Summary of the Facts: | Cecil Ben was convicted of forcible rape and sentenced to life. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Right to speedy trial Ben argues that his constitutional right to a speedy trial was violated. Factors to be considered are the length of delay, reason for the delay, defendant’s assertion of his right, and prejudice to the defendant. Ben was arrested on October 19, 2007, and he was incarcerated until November 5, 2007, when he posted bail. Ben was not indicted until November 8, 2008, and trial began on May 11, 2009. Since the delay exceeds eight months, it is presumptively prejudicial. The majority of the delay was caused by the length of time it took to perform DNA testing on the evidence. In addition, Ben’s trial counsel filed a motion for continuance. As it is apparent that there was reason for delay from both Ben and the State, this factor is neutral. Ben filed a motion to assert his right to a speedy trial and a motion to dismiss for a violation of his right to a speedy trial on January 5, 2009. Shortly thereafter, the agreed order of continuance was signed. This factor weighs against Ben. While Ben argues he was prejudiced by the fading memory of potential witnesses, the fact remains that Ben was able to contact these witnesses in order to prepare his defense. Given these factors, Ben’s constitutional right to a speedy trial was not violated. Issue 2: Peremptory challenges Ben argues that the trial judge required him to make peremptory challenges even though the State had not presented a full panel of jurors. However, Ben failed to make a contemporaneous objection. In addition, the State accepted twelve jurors prior to submitting them to Ben. Ben then proceeded to exercise his peremptory strikes. Issue 3: Hearsay Ben argues that statements made by two witnesses were hearsay and should not have been admitted. The testimony of one witness was clearly hearsay, as it was offered to prove that Ben had raped the victim. The trial judge determined that the testimony met the hearsay exception under M.R.E. 803(3). However, Rule 803(3) is not a viable avenue for admission of the victim’s statements. The statement is a statement of belief to prove a fact believed by the victim, but it does not relate to the execution, revocation, identification, or terms of the victim’s will. But the admission of the statement was harmless error since the properly admitted evidence is more than sufficient to support the jury’s verdict. Issue 4: Discovery violation Ben argues that the trial court erred in allowing testimony from a witness about statements Ben had made to the witness about the victim two days prior to the rape. Ben argues that this statement was not disclosed during discovery. Ben did not seek a continuance or a mistrial. The failure to request a continuance constitutes a waiver of the discovery violation. Issue 5: Sufficiency of evidence Ben argues that the evidence was legally insufficient to support the verdict. An individual may be found guilty of rape on the uncorroborated testimony of the prosecuting witness, where the testimony is not discredited or contradicted by other credible evidence. According to the victim, Ben held her down and raped her. She testified that she resisted, but Ben was too strong. DNA from both the victim and Ben was found on a paper towel near where the rape had occurred. Although the victim failed to report the rape immediately afterward, she testified that she was ashamed of what had happened. It was the jury’s job to determine her credibility, and it clearly resolved any conflicts in the evidence in the State’s favor. There was sufficient evidence to find Ben guilty of forcible rape. Issue 6: Disproportionate sentence Ben argues that his sentence was disproportionate when compared to sentences given to those convicted of the same offense. As a general rule, a sentence that does not exceed the maximum period allowed by statute will not be disturbed on appeal. Section 97-3-65(4)(a) provides that a person convicted of forcible sexual intercourse shall be imprisoned for life in the State Penitentiary if the jury by its verdict so prescribes. Ben’s guilt and sentence were set by the jury. Ben was sentenced pursuant to the statutory guidelines, and his sentence does not lead to an inference of gross disproportionality. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
