Donald A. Wilson v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-KA-00196-COA
DONALD A. WILSON A/K/A DONALD ALBERT
WILSON, JR.
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
3/19/2004
HON. FRANK G. VOLLOR
WARREN COUNTY CIRCUIT COURT
PATRICK JOSEPH MCNAMARA
JENNIFER P. FORTNER
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
G. GILMORE MARTIN
CRIMINAL - FELONY
CONVICTED OF COUNT I-MURDER AND
SENTENCED TO LIFE IN PRISON; COUNT IIAGGRAVATED ASSAULT AND SENTENCED
TO TWENTY YEARS; AND COUNT III-ARSON
THIRD DEGREE AND SENTENCED TO THREE
YEARS, ALL TO BE SERVED CONSECUTIVELY
AND IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS.
AFFIRMED - 10/04/2005
EN BANC.
LEE, P.J., FOR THE COURT:
PROCEDURAL HISTORY
¶1.
On November 14, 2003, a jury in the Warren County Circuit Court found Donald A. Wilson guilty
of murder, aggravated assault and arson. Wilson was sentenced to serve a life sentence for the murder
count, twenty years on the aggravated assault count, and three years on the arson count, all sentences to
run consecutively to each other and served in the custody of the Mississippi Department of Corrections.
Wilson subsequently filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a
new trial, which was denied. From this conviction, Wilson appeals to this Court asserting the following
issues: (1) he was improperly denied the right to fully cross-examine the State’s expert witness; (2) the trial
court erred in allowing for the videotaped deposition of Dr. Phillip Meredith; (3) his initial appearance was
impermissibly delayed; (4) he was denied his right to counsel; and (5) his statements to law enforcement
officers were not knowing and voluntary. Finding no error, we affirm.
FACTS
¶2.
On August 19, 2001, investigators from the Warren County Sheriff’s Department responded to
a call regarding a shooting. Upon arriving on the scene, investigators found a black pickup truck on fire,
with the body of Joseph Hartzog inside. Hartzog, although burned, died from gunshot wounds to his head
and chest.
¶3.
Patricia Wilson, Wilson’s ex-wife, testified that she and Hartzog were at her house vacuuming
Hartzog’s truck when Wilson arrived. After conversing with Patricia, Wilson drew a gun and shot Patricia
in the stomach. As Patricia fled, she heard other shots being fired. Two of Patricia’s neighbors, Margaret
Melton and Christopher Melton, both saw Wilson throw burning rags into the black pickup truck.
I. WAS WILSON DENIED HIS RIGHT TO CROSS-EXAMINE THE STATE’S EXPERT
WITNESS?
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¶4.
In his first issue on appeal, Wilson argues that he was denied his right to cross-examine the State’s
expert witness, Dr. Phillip Meredith. Specifically, Wilson contends that his defense was prejudiced
because he could not cross-examine Dr. Meredith regarding Wilson’s medical records from the Veteran’s
Administration (VA). According to the record, there was an agreed order to produce Wilson’s VA
records, signed June 26, 2002. As Dr. Meredith was unable to testify at trial due to a conflict, his
testimony was elicited through a video deposition on October 20, 2003, during which Wilson was able to
cross-examine Dr. Meredith. Dr. Meredith, prior to his video deposition, also requested a copy of
Wilson’s medical records. Dr. Meredith did not receive these records, a fact which he stated in his video
deposition. The VA records were produced on the second day of Wilson’s trial, November 12, 2003.
¶5.
Wilson’s expert witness, Dr. Wood Hiatt, was able to review the VA records prior to his
testimony. After reviewing the records, Dr. Hiatt changed his opinion of Wilson’s mental status at the time
of the crime. Wilson states that, if Dr. Meredith had been able to see the VA records, he might have
reached a different conclusion as to whether Wilson was sane at the time of the crime. During a hearing
on November 7, 2003, on the motion to exclude Dr. Meredith’s testimony, the trial court, in allowing Dr.
Meredith’s testimony, found as follows:
But the Court - - he testified - - I believe he [Dr. Meredith] testified it wouldn’t affect his
decision [concerning Wilson’s sanity]; he had what he needed. That’s a matter of weight
of his testimony, whether he had those records, whether they would have made a
difference or not. It doesn’t go to the exclusion of testimony. It goes to the weight of the
testimony.
¶6.
The jury heard testimony fromDr. Meredith, Dr. Hiatt, police officers, Patricia Wilson, and others,
ultimately finding Wilson guilty of the crimes charged. It was within their province to accept or reject
testimony from witnesses. Mangum v. State, 762 So. 2d 337 (¶12) (Miss. 2000). We fail to find merit
with this issue.
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II. DID THE TRIAL COURT ERR IN ALLOWING FOR THE VIDEOTAPED DEPOSITION
OF DR. PHILLIP MEREDITH?
¶7.
In his second issue, Wilson argues that the trial court erred in allowing the video deposition of Dr.
Meredith. Wilson states that there is no substitute for having the expert physically on the stand at trial.
However, due to numerous continuances, a change of venue, and scheduling conflicts, Dr. Meredith was
unable to testify at trial. The trial court stated as follows:
[T]he Court thinks there’s no reasonable way to obtain his [Dr. Meredith] presence in the
state during that week. So I’m going to declare him unavailable. The only alternative
would be to postpone the trial, and this case has been postponed and postponed for two
years now. And to come up with a further postponement would, to me, not meet the ends
of justice. . . . the Court is going to order that the deposition be taken here in the
courtroom and that the defendant be available to consult with counsel and see the
deponent face to face as he would in a trial, that it be a video deposition, and I will be
available to answer objections when it’s scheduled.
¶8.
We cannot find that the trialcourt erred in allowing Dr. Meredith to testify through video deposition;
thus, we find this issue lacks merit.
III. WAS WILSON’S INITIAL APPEARANCE IMPERMISSIBLY DELAYED?
IV. WAS WILSON DENIED HIS RIGHT TO COUNSEL?
V. WERE WILSON’S STATEMENTS VOLUNTARY?
¶9.
In his third, fourth, and fifth issues, Wilson argues that his initial court appearance was impermissibly
delayed, he was denied his right to counsel, and his statements were not voluntary. In regards to his initial
appearance, Wilson more specifically states that if the officer had not delayed taking Wilson before the
judge, then Wilson would not have made incriminating statements about his crimes. Pursuant to Uniform
Circuit and County Court Rule 6.03, anyone in custody is entitled to an initial appearance “without
unnecessary delay and within 48 hours of arrest . . . .” We note that Wilson’s initial appearance was within
forty-eight hours of his arrest.
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¶10.
Even if the initial appearance occurs within forty-eight hours of arrest, a defendant’s constitutional
rights have been violated if he can show that the hearing was delayed for an impermissible purpose, such
as “gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested
individual, or delay for delay’s sake.” County of Riverside v. McLaughlin, 500 U.S. 44, 66 (1991).
However, where the trial court has overruled a motion to suppress the confession of a defendant, this Court
will reverse the trial court's decision only if the trial court's ruling was clearly erroneous or contrary to the
overwhelming weight of the evidence. White v. State, 495 So. 2d 1346, 1347 (Miss. 1986).
¶11.
Deputy Jay McKenzie testified that, as he was preparing to transport Wilson to the initial
appearance, Wilson told him that he wanted to ask McKenzie some questions and make a statement.
Wilson then signed a Miranda rights waiver. According to a partial transcript of Wilson’s statement,
McKenzie told Wilson on more than one occasion that he was entitled to have an attorney present, even
if he couldn’t afford one. Wilson responded in the negative, saying, “What I’m trying to say is I done
wrong and I don’t want this carried out any length of time. . . . I want to get it over with.”
¶12.
After hearing arguments concerning a motion to suppress Wilson’s statement, the trial court found
that:
[A]ny delay was brought about by the defendant, not by the State, and he waived any
rights he may have had by the postponement because he’s the one that initiated the
postponement of the initial hearing by asking to speak to the deputies on his way to the
hearing. He did that and they complied with his wish. Then he wished to give a statement.
As Wilson has not shown his hearing was delayed by an impermissible purpose, we cannot find that the
trial court erred in denying his motion to suppress; thus, we find no merit to this issue.
¶13.
In his fourth and fifth issues on appeal, Wilson argues that he was denied his right to counsel during
his statement prior to the initial hearing and that this statement was not given voluntarily. The record of
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Wilson’s transcribed statement indicates that he never requested an attorney. The record also shows that
Deputy McKenzie explained the waiver of rights form to Wilson before he signed it. Also, when asked
by Wilson, “Do I have to have a lawyer?” McKenzie responded saying, “You don’t have to but that’s a
right that. . . .” McKenzie continued by stating, “You know if you want a lawyer now before we take this
statement or whatever, you’re perfectly right to have one.” We reiterate that it was Wilson who requested
to speak with an officer and, ultimately, confess to the crime. Furthermore, Wilson appeared to understand
the waiver of rights form which he signed. We find no merit to these issues.
¶14. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF CONVICTION
OF COUNT I, MURDER AND SENTENCE OF LIFE; COUNT II, AGGRAVATED ASSAULT
AND SENTENCE OF TWENTY YEARS; AND COUNT III, ARSON THIRD DEGREE AND
SENTENCE OF THREE YEARS, ALL TO BE SERVED CONSECUTIVELY IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.
KING, C.J., BRIDGES, P.J., IRVING, MYERS, CHANDLER, BARNES AND ISHEE,
JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.
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