Rushing v. State


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Docket Number: 2002-CA-00438-COA
Linked Case(s): 2002-CT-00438-SCT ; 2002-CA-00438-COA

Court of Appeals: Opinion Link
Opinion Date: 09-23-2003
Opinion Author: Thomas, J.
Holding: Affirmed

Additional Case Information: Topic: Post-conviction relief - Victim’s recanted testimony
Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Lee, Irving, Myers, Chandler and Griffis, JJ.
Procedural History: PCR
Nature of the Case: PCR

Trial Court: Date of Trial Judgment: 10-12-2001
Appealed from: Lauderdale County Circuit Court
Judge: Robert Bailey
Disposition: POST-CONVICTION COLLATERAL RELIEF DENIED.
District Attorney: Bilbo Mitchell
Case Number: 01-CV-107(B)

  Party Name: Attorney Name:  
Appellant: James R. Rushing, Jr. a/k/a Devil Catcher




JAMES A. WILLIAMS



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS  

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Topic: Post-conviction relief - Victim’s recanted testimony

Summary of the Facts: James R. Rushing, Jr. was convicted of aggravated assault and rape and was sentenced to twenty years on the aggravated assault and ten years on the rape conviction. His conviction and sentences were affirmed on direct appeal but on rehearing, the rape conviction and sentence were affirmed while the aggravated assault conviction was reversed and remanded. Rushing filed a petition for certiorari which was denied. Rushing then filed a petition for post-conviction relief with the Mississippi Supreme Court which was denied in part and granted in part with regard to the issue of victim's recanted testimony. The trial court held a post-conviction evidentiary hearing after which the court denied Rushing's motion for post-conviction relief. Rushing appeals.

Summary of Opinion Analysis: Rushing’s arguments deal with the fact that the State did not call the rape victim to testify at the evidentiary hearing. An evidentiary hearing is held so that the court can better evaluate the testimony of the recanting witness. At the hearing, Rushing chose not to call the victim as a witness but instead, presented the deposition of the victim taken by his counsel where she purportedly recanted her trial testimony. The State presented the affidavit of the victim which explained that the recanted testimony was coerced. The burden of proof was on Rushing, and he had the opportunity to call the victim but declined. Because Rushing did not meet his burden of proof, the court did not err.


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