Kleckner v. State
Docket Number: | 2009-KA-01681-COA Linked Case(s): 2009-KA-01681-COA ; 2009-CT-01681-SCT |
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Court of Appeals: |
Opinion Link Opinion Date: 05-22-2012 Opinion Author: Carlton, J Holding: Affirmed |
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Additional Case Information: |
Topic: Sexual battery & Touching child for lustful purposes - Continuance - Voluntariness of confession - Right to remain silent - Right to speedy trial - Fair jury - Excessive sentences - Closing argument - Admission of evidence - Sufficiency of evidence - Ineffective assistance of counsel Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Ishee and Fair, JJ. Non Participating Judge(s): Roberts, J. Concur in Part, Concur in Result 1: Barnes, Maxwell and Russell, JJ., Concur in Part and in the Result Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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Trial Court: |
Date of Trial Judgment: 09-22-2009 Appealed from: Union County Circuit Court Judge: Andrew K. Howorth Disposition: CONVICTED OF COUNT I, TOUCHING A CHILD FOR LUSTFUL PURPOSES, AND SENTENCED TO FIFTEEN YEARS; COUNT II, III, AND IV, SEXUAL BATTERY, AND SENTENCED TO LIFE ON EACH COUNT, WITH THE THREE LIFE SENTENCES TO RUN CONCURRENTLY AND THE SENTENCE OF FIFTEEN YEARS TO RUN CONSECUTIVELY TO THE THREE, CONCURRENT LIFE SENTENCES, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Benjamin F. Creekmore Case Number: UK2008-191 |
Party Name: | Attorney Name: | |||
Appellant: | Jeffery Kleckner |
GREGORY M. HUNSUCKER |
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Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LISA LYNN BLOUNT |
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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. |
Topic: | Sexual battery & Touching child for lustful purposes - Continuance - Voluntariness of confession - Right to remain silent - Right to speedy trial - Fair jury - Excessive sentences - Closing argument - Admission of evidence - Sufficiency of evidence - Ineffective assistance of counsel |
Summary of the Facts: | Jeffrey Kleckner was convicted of three counts of sexual battery and one count of touching a child for lustful purposes. He was sentenced to three concurrent life sentences for his sexual-battery convictions and to a consecutive fifteen-year sentence for his conviction for touching a child for lustful purposes. He appeals. |
Summary of Opinion Analysis: | Issue 1: Continuance Kleckner argues that he was not given adequate time to prepare for trial due to Kleckner's hospitalization because the trial court denied his attorney’s ore tenus motion for a continuance. Kleckner also claims that the motion for continuance should have been granted because neither his attorney nor the trial court knew at the time of the motion about an alleged unlawful ex parte hospital visit by the assistant district attorney formerly associated with the case to the hospital. The question of whether defendant had a reasonable opportunity to prepare to confront the State's evidence at trial depends upon the particular facts and circumstances of each case. The appellate court will only reverse when manifest injustice appears to have resulted from the decision to deny the continuance. In this case, Kleckner and his trial counsel had from April 2009 until September 2009 to prepare for trial. Further, the record fails to demonstrate that the assistant district attorney acted in a manner that violated Kleckner’s constitutional rights. There has been no showing of manifest injustice. Issue 2: Confession Kleckner argues that the trial court erred in admitting his officer-written confession without holding a hearing, and that the State failed to meet its burden by showing through expert medical testimony that Kleckner was able to give a knowing and voluntary waiver and confession. When a criminal defendant objects to the admission of his confession, arguing it was involuntary, the trial court must conduct a hearing outside the presence of the jury. At the hearing, the burden is on the State to prove voluntariness beyond a reasonable doubt. The record shows that Kleckner failed to move to suppress his statement or to otherwise request the trial court to conduct a pretrial hearing on the voluntariness of the confession. Kleckner argues that in responding to his discovery requests, the State failed to disclose exculpatory evidence of his medical condition at the time he gave his statement. Kleckner claims that such conduct constitutes a Brady violation. To establish a Brady violation a defendant must prove that the government possessed evidence favorable to the defendant (including impeachment evidence); that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence; that the prosecution suppressed the favorable evidence; and that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different. Kleckner fails to demonstrate that he satisfies even the first and second Brady factors, which require proof that the defendant did not possess the evidence and could not have obtained the evidence through reasonable diligence. Kleckner was aware of his medical condition at the time he gave his statement, of which he could have advised his trial counsel if his condition had affected his ability to give a voluntary statement. After receiving this information, Kleckner’s counsel could have made a specific discovery request or could have filed a motion to compel his jail medical records. Issue 3: Right to remain silent Kleckner argues that the arresting officer violated his Fifth Amendment rights by continued questioning after Kleckner asked him to stop during the interrogation and when the investigator commented during his trial testimony on Kleckner's right to remain silent. Unless the suspect actually requests an attorney, questioning may continue. Kleckner failed to make an unambiguous, unequivocal assertion of his right to remain silent, and the officer was not compelled to stop the questioning. The officer asked Kleckner about one act the victim said he had committed, and Kleckner said he did not want to answer any more questions. The officer asked the question again and then ended questioning. There was no violation of Kleckner’s right not to give evidence against himself. In addition, the record shows that defense counsel offered no objection to the investigator’s testimony during direct examination by the State, and the investigator was responding to questions from defense counsel during cross-examination. Kleckner also argues that his Fourth Amendment rights were violated when he was seized without a search warrant. However, nothing appears in the record showing that Kleckner refused the officer’s entry into the home. Issue 4: Right to speedy trial Kleckner argues that both his statutory and constitutional speedy-trial rights were violated. The record shows that Kleckner raised no speedy-trial demand with the trial court; therefore, his statutory claim is procedurally barred. Kleckner makes blanket assertions of prejudice rather than pointing out any instance of actual prejudice. Approximately one year elapsed between Kleckner’s initial arrest and his trial. Thus, there is no showing of prejudice to establish plain error. Issue 5: Fair jury Kleckner argues that he failed to receive a trial by a fair and impartial jury, which violated his fundamental constitutional rights. Specifically, Kleckner points to Juror 43's failure to speak up during voir dire and disclose her relationships with her mother, who was also the sheriff's designee at the post-remand hearing; and her spouse, an investigator with the New Albany Police Department. The pertinent question asked by the State to the jurors during voir dire was if they could be fair and impartial despite being related to a law enforcement officer. The question asked was not whether they were related to a law enforcement officer. Accordingly, this issue is without merit. Issue 6: Sentences Kleckner argues that his three life sentences, without possibility of parole, plus his consecutive, fifteen year sentence violates his Eighth Amendment constitutional rights. The sentences imposed by the trial court were within the statutory limitation. Thus, there is no merit to this argument. Kleckner also argues that the trial court's sentencing him to the maximum sentences on all four counts, including three life sentences without the possibility of parole, without a sentencing hearing violated his due-process rights. However, the trial court acted as statutorily permitted. Issue 7: Closing argument Kleckner argues that the prosecution's closing argument, referring to Kleckner's invocation of his right to remain silent, appealing to localism, and inflaming the jury's passions violated his rights under the Fifth Amendment. The standard used in reviewing closing arguments is whether the natural and probable effect of the prosecuting attorney's improper argument created unjust prejudice against the accused resulting in a decision influenced by prejudice. Here, the record does not evidence that, absent the State’s comments, the jury would have found Kleckner not guilty of the crimes for which he was convicted. Issue 8: Admission of evidence Kleckner argues that the trial court erred by permitting a “forensic” interviewing “expert” to testify when the victim had already testified, and alternatively, the trial court erred by failing to give a limiting instruction on the weight to be accorded the “expert’s” testimony. The testimony and evidence in question was not objected to by Kleckner at trial, and Kleckner’s assertions of error fail to rise to the level of plain error. Issue 9: Sufficiency of evidence Kleckner argues that if the inadmissible evidence had been excluded, there would not be sufficient evidence to support any of his convictions. The evidence presented at trial included the testimony of the victim as to the sexual misconduct of Kleckner; witness testimony that the victim was twelve-years old and Kleckner was over the age of eighteen at the time of the sexual misconduct; the testimony of the forensic interviewer and expert witness; and Kleckner’s confession. Reasonable, fair-minded jurors could find beyond a reasonable doubt that Kleckner was guilty of the crimes of sexual battery and the touching of a child for lustful purposes. Issue 10: Ineffective assistance of counsel Kleckner argues that his trial counsel rendered ineffective assistance in violation of his constitutional rights. Specifically, Kleckner contends that he was denied counsel at a critical stage in the proceedings and that his trial counsel did not subject the prosecution’s case to meaningful adversarial testing. The merits of a claim of ineffective assistance of counsel brought on direct appeal should be addressed only when the record affirmatively shows ineffectiveness of constitutional dimensions, or the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge. The record shows no obvious deficiencies that rose to the level of ineffective assistance of counsel. The record shows that the attorney had ample opportunity to prepare for trial and was not denied access to his client. This issue is denied without prejudice so that Kleckner may, if he desires to do so, present an ineffective-assistance-of-counsel claim in a motion for post-conviction collateral relief. |
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