Osborne v. State
| Docket Number: | 2004-KA-00991-COA Linked Case(s): 2004-CT-00991-SCT ; 2004-KA-00991-COA |
|
| Court of Appeals: |
Opinion Link Opinion Date: 02-21-2006 Opinion Author: King, C.J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Murder - Competency of child witness - Hearsay - M.R.E. 803(4) - M.R.E. 803(24) - M.R.E. 102 - Veracity of child - Photographs - Ineffective assistance of counsel - Sufficiency of evidence Judge(s) Concurring: Lee and Myers, P.JJ., Southwick, Irving, Chandler, Griffis, Barnes and Ishee, JJ. Non Participating Judge(s): Roberts, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
|
| Trial Court: |
Date of Trial Judgment: 04-08-2004 Appealed from: Lauderdale County Circuit Court Judge: Larry Eugene Roberts Disposition: CONVICTED OF MURDER AND SENTENCED TO SERVE A TERM OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: BILBO MITCHELL Case Number: 499-03 |
|
| Party Name: | Attorney Name: | |||
| Appellant: | Joseph Eugene Osborne |
JAMES A. WILLIAMS |
||
| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL |
|
|
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: | Murder - Competency of child witness - Hearsay - M.R.E. 803(4) - M.R.E. 803(24) - M.R.E. 102 - Veracity of child - Photographs - Ineffective assistance of counsel - Sufficiency of evidence |
| Summary of the Facts: | Joseph Osborne was convicted of murder and was sentenced to serve a term of life imprisonment. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Competency of child witness Osborne argues that the court erred in finding a child witness competent to testify. A child is competent to testify if the court determines that the child has the ability to perceive and remember events, to understand and answer questions intelligently and to comprehend and accept the importance of truthfulness. The child in this case was three years old when his brother was murdered and almost five at the time of the hearing. He knew the difference between the truth and a lie and he promised to tell the truth. The judge made an on the record finding that the child possessed an above average ability for a four year old to remember events, possessed the ability to understand questions and respond intelligibly, and understood the importance of testifying truthfully. Osborne also challenges the child’s veracity by suggesting that he was coached to give the desired testimony. Credibility of testimony is a matter of jury determination. The judge was well within his discretion in determining that the child was competent to testify. Issue 2: Hearsay Osborne argues that three witnesses were allowed to give hearsay testimony regarding the child’s revelation of his eyewitness account of his brother’s death. With regard to the doctor’s testimony, the judge made an-on-the record finding that the purpose of the doctor’s session with the child was relevant to her treatment and recommendation that the child seek counseling and therapy for the trauma he suffered as a result of witnessing his brother’s death. Thus, the testimony was admissible under M.R.E. 803(4). With regard to the other two witnesses, the judge admitted this testimony under M.R.E. 803(24) “other exceptions.” The judge found that the child’s statements were freely given without any prompting from anyone present and that the statements showed the consistency and credibility of his story. The case at hand is one of the rare instances in which Rule 803(24) was properly invoked pursuant to M.R.E. 102. Issue 3: Veracity of child Osborne argues that the doctor improperly commented on the child’s veracity during her testimony. Direct witness testimony that a child victim has told the truth is, at best, of dubious competency. Here, the doctor did not impermissibly testify that the child was telling the truth during their interview in which he described his brother’s death at the hands of Osborne. Rather, she testified about the indicators that she looks for during a forensic interview with a child victim/witness and then described the child’s demeanor and mannerisms during their interview. Issue 4: Photographs Osborne argues that the court erred in admitting into evidence life scene photographs of the victim. The judge found that the photos had some probative value showing size, weight, age, physical characteristics. The judge was well within his discretion to admit the photographs. Issue 5: Ineffective assistance of counsel Osborne argues that he was rendered ineffective assistance of counsel due to his counsel’s failure to object to numerous leading questions, contradict witnesses at the pre-trial hearing and trial, examine the “death mask” and question witnesses about the size of their hands, request explanatory instruction on expert testimony, and object to vouching by the prosecutor. Osborne fails to state how the leading questions in any way prejudiced him. As for trial counsel’s failure to contradict witnesses, this was trial strategy. As for trial counsel’s failure to examine the “death mask,” even if this were deficient performance, there was no resulting prejudice. Also, Osborne was not prejudiced by counsel’s failure to question witnesses about the size of their hands; although the pathologist testified on direct that the large hand mark on the victim’s face appeared to be that of a male hand, on cross he opined that it could possibly be a female handprint. Issue 6: Sufficiency of evidence Osborne argues that the evidence was legally insufficient. The State presented an eyewitness to the murder, along with two witnesses whose testimony revealed the consistency of the child witness’s account, and the arguably incriminating testimony of Osborne’s cellmate. The evidence was legally sufficient for a reasonable jury to find Osborne guilty of murder. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
