David Eugene Magnusen v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 96-KA-00647 COA
DAVID EUGENE MAGNUSEN
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
DATE OF JUDGMENT:
JUNE 11, 1996
TRIAL JUDGE:
HONORABLE JERRY OWEN TERRY, SR.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:
DONALD A. SMITH
STEPHEN J. MAGGIO
ATTORNEY FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: CHARLES W. MARIS, JR.
DISTRICT ATTORNEY:
CONO CARRANNA
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
CT I BURGLARY OF AN INHABITED DWELLING: CT
II AGGRAVATED ASSAULT: CT III ROBBERY: CT IV
RAPE:CT I 8 YRS TO RUN CONCURRENTLY WITH
15 YRS IN CTIII TO RUN CONSECUTIVELY WITH 15
YRS IN CT II TO RUN CONSECUTIVELY WITH 45
YRS IN CT IV TOTAL 75 YRS
DISPOSITION:
AFFIRMED - 9/15/98
MOTION FOR REHEARING FILED: 10/12/98
CERTIORARI FILED:
12/21/98
MANDATE ISSUED:
4/12/99
BEFORE McMILLIN, P.J., COLEMAN, AND SOUTHWICK, JJ.
SOUTHWICK, J., FOR THE COURT:
¶1. David Eugene Magnusen was convicted by a jury in the Circuit Court of Harrison County of the
crimes of burglary of an occupied dwelling, aggravated assault, robbery, and rape. Magnusen
challenges his conviction on these grounds: (1) the State violated his constitutional right to a speedy
trial; (2) the trial court failed to appoint or grant his defense counsel an opportunity to obtain a
forensic expert; (3) the court refused to disperse funds for the procurement of a private investigator;
(4) the State obtained blood and hair samples from him in violation of his Fourth Amendment right
and without informing him of his right to refuse such intrusions; (5) the court erred in denying his
motion to suppress the testimony of Dr. Moran, the emergency room physician who examined the
victim; and (6) the verdict was against the overwhelming weight of the evidence. These assignments
of error are without merit and we affirm.
STATEMENT OF FACTS
¶2. During the early morning hours of May 19, 1990, Evelyn Verchinski was awakened by the sounds
of her dog's incessant barking. Ms. Verchinski, who lived alone, got up to investigate. As she turned
on the light in her dining room, she noticed an unusual reflection in a mirror located down the
hallway. Ms. Verchinski turned off the light and when she turned it on again a young man, armed
with a shovel, suddenly ran toward her. She attempted to escape by running into the garage and then
into the backyard where she kept her dog. The attacker, however, lunged toward her and forced her
to the ground in the garage.
¶3. A fierce struggle ensued. Ms. Verchinski tried to spray the intruder with flea spray and to bite
through his sock-covered arms. However, the attacker struck her in the face with the shovel and then
slammed her against the vehicle parked in the garage. The intruder then dragged her into the
residence. Once inside, he instructed Ms. Verchinski to clean the blood from her face and nightgown.
The intruder demanded money and then ordered her into the bedroom. He forced Ms. Verchinski to
undress and to engage in fellatio and sexual intercourse. When a knock at the front door startled the
attacker, he tied Ms. Verchinski to a chair, placed her in a spare bedroom, and fled from the
residence. Shortly thereafter, Ms. Verchinski managed to untie herself, call the police, and give a
description of the suspect. She was transported to the local hospital where authorities performed a
sexual assault examination.
¶4. An officer from the Gulfport Police Department was advised of the attack. As he responded to
the scene, the officer noticed an individual matching the physical description of the attacker standing
outside a local bar. The officer attempted to stop and question the man, but he jumped over a fence
and escaped. The officer and Ms. Verchinski subsequently identified David Eugene Magnusen in a
photographic line-up as the person each had seen. Ms. Verchinski later also positively identified
Magnusen in a line-up at the police station.
¶5. On May 30, 1990, Magnusen was apprehended and indicted for burglary of an occupied dwelling,
aggravated assault, robbery, and rape. The court conducted a hearing based on an alleged violation of
Magnusen's constitutional right to a speedy trial. The court concluded that there had been a violation
and dismissed all charges on August 22, 1991. The State appealed, though its request for an
expedited hearing was denied by the supreme court.
¶6. On November 17, 1994, the supreme court issued its opinion in the case. The court held that the
trial court paid insufficient attention to the various distinct periods of delay in reaching its conclusion.
The court also concluded that the trial court erroneously required that the delay be for good and
sufficient cause rather than determining whether the reason weighed heavily, lightly, or not at all.
Consequently, the court reversed and remanded the cause for Magnusen to stand trial on all charges.
See Magnusen v. State, 646 So. 2d 1275 (Miss. 1994).
¶7. Magnusen's attorney filed, and the supreme court granted, a petition for an enlargement of time to
file a petition for rehearing. However, there is no record that a petition for rehearing was ever filed.
On January 17, 1995, the circuit clerk received the supreme court's mandate. An order to reinstate
the cause on the docket was filed on January 20, 1995. Extradition proceedings to have Magnusen
returned from incarceration in Wisconsin were not concluded until July 22, 1995. Trial commenced
on February 26, 1996, and Magnusen was convicted on all counts.
DISCUSSION
I. CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL
¶8. Magnusen asserts that the trial court committed reversible error by failing to dismiss for lack of a
speedy trial due to additional delays that occurred after remand. He was arrested on May 30, 1990,
and not tried until February 26, 1996. He alleges that this delay prejudiced his case and violated his
constitutional right to a speedy trial. Magnusen makes no claim concerning the statutory 270-day rule
under Section 99-17-1 of the Mississippi Code.
¶9. The right to a speedy trial is guaranteed by the Sixth and Fourteenth Amendments to the United
States Constitution, as well as Article 3, Section 26 of the Mississippi Constitution of 1890. An
alleged violation of the constitutional right to a speedy trial is examined under a four part test
announced in Barker v. Wingo, 407 U.S. 514 (1972). The factors, which must be balanced in light of
all surrounding circumstances, are: (1) the length of delay; (2) the reason for the delay; (3) the
defendant's assertion of his right to a speedy trial; and (4) any prejudice to the defendant resulting
from the delay. Id. at 533; Giles v. State, 650 So. 2d 846, 850 (Miss. 1995). The weight given to
each factor "turns on the peculiar facts and circumstances of each case, the quality of evidence
available on each factor and, in the absence of evidence, identification of the party with the risk of
non-persuasion." Stogner v. State, 627 So. 2d 815, 818 (Miss. 1993).
¶10. The circuit court found there to be no speedy trial violation but did not articulate specific
findings of fact. In such circumstances, the appellate court must itself apply de novo the four Barker
factors. See State v. Ferguson, 576 So. 2d 1252, 1255 (Miss. 1991). We do so now.
A. Length of Delay
¶11. The first task is to designate a starting point for the speedy trial calculations. The constitutional
right to a speedy trial generally attaches at the time a person is effectively accused of a crime. Box v.
State, 610 So. 2d 1148, 1150 (Miss. 1992). The procedural history of this case presents an unusual
though not unique situation. Magnusen was arrested on May 30, 1990. The trial court dismissed the
case on August 22, 1991. On November 17, 1994, the supreme court reinstated the prosecution and
ordered Magnusen to stand trial on all charges. The court granted Magnusen's request for an
extension of time to file his petition for rehearing; however, no such petition was ever filed. The
court's mandate was issued on January 13, 1995 and was received by the circuit clerk on January 17,
1995.
¶12. Magnusen asserts that this Court should consider the entire time period from his 1990 arrest
until his 1996 trial. Conversely, the State claims that the speedy trial calculations should begin from
the date the circuit clerk received the mandate from the supreme court, which was January 17, 1995.
¶13. We first note that the supreme court has determined that after a conviction has been reversed,
the speedy trial guarantee is measured from "the date we reversed his original conviction." Ferguson,
576 So. 2d at 1254. Ferguson's original reversal was not due to speedy trial problems during his
original prosecution. Ferguson v. State, 507 So. 2d 94 (Miss. 1987). To determine whether that is a
relevant distinction here, we start by noting that the primary purpose of the speedy trial guarantee is
"to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but
nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to
shorten the disruption of life caused by arrest and the presence of unresolved charges." United States
v. MacDonald, 456 U.S. 1, 8 (1982). The Court has held that once charges are dismissed against a
defendant, the speedy trial guarantee is no longer applicable to that time period. Id.; United States v.
Loud Hawk, 474 U.S. 302, 312 (1986). In Loud Hawk, seven years passed after a trial court ordered
that certain evidence be suppressed and before the government's interlocutory appeals of that order
were finally resolved. Loud Hawk, 474 U.S. at 307-10. The Court held that even though the
government's desire to prosecute was evident from the pursuit of the appeal, the absence of any
actual restraint and the dismissal of the indictment prevents the time period of the appeal from being
included in the speedy trial analysis. Id. at 312. Though a defendant may still suffer some restraint on
his liberty or stress and anxiety following the dismissal of charges, it is no greater than that endured
by an individual "openly subject to a criminal investigation." MacDonald, 456 U.S. at 9.
¶14. The Mississippi Supreme Court addressed a somewhat similar situation in Carlisle v. State, 393
So. 2d 1312 (Miss. 1981). Carlisle's conviction in a third trial was reversed by the supreme court
after his first conviction had been set aside on a motion for new trial and his second trial had ended in
a mistrial. Id. at 1313. A fourth trial also ended in conviction. In the second appeal, the alleged
violation of speedy trial rights was computed under Barker from the date that the circuit court clerk
filed the mandate from the earlier reversal. Id. at 1314. See also White v. State, 572 So. 2d 865, 870
(Miss. 1990) (employing date of reversal for commencement of speedy trial computations).
¶15. The most recent case on the issue involved the lengthiest delay. Beckwith v. State, 707 So. 2d
547 (Miss. 1997). The following time periods were involved: thirty years between the offense and the
conviction, twenty-nine years from two mistrials until conviction, and twenty-five years from the date
that the indictment was retired to the files until conviction. Id. at 565. The court in effect found that
the years after the indictment was retired to the files were the equivalent of the accused no longer
being under indictment for speedy trial purposes. Id. at 566. The indictment had not been dismissed
as in Loud Hawk, but the effect was the same. Thus Beckwith is consistent with Carlisle.
¶16. One much more limited question is whether the important date that recommences speedy trial
time computations is the date of the supreme court opinion, or the date of the mandate. That two
month difference here is of little consequence, since the period between November 17, 1994, and
January 17, 1995 would not benefit Magnusen. Most of that period was the result of his motion for
enlargement of time to file a petition for rehearing, a petition that he never filed.
¶17. After the trial court dismissed the charges on August 22, 1991, Magnusen was not incarcerated
or subjected to other substantial restrictions on his liberty. Although the supreme court has
occasionally referred to the date of its reversal of an earlier conviction as relevant for speedy trial
guarantees, the circuit court is without jurisdiction to reinstate the case on the docket until it receives
the mandate from the supreme court. The State may not petition to reinstate the case on the docket
until the supreme court finally disposes of the case. Consequently, we find that the first day of
Magnusen's speedy trial calendar is January 17, 1995.
¶18. Under Mississippi law, a delay of eight months or longer is presumptively prejudicial. Smith v.
State, 550 So. 2d 406, 408 (Miss. 1989). A delay which is presumptively prejudicial will not require
reversal but will require an examination of the remaining factors. Handley v. State, 574 So. 2d 671,
676 (Miss. 1990). In this case, Magnusen's trial was delayed approximately thirteen months. Thus
prejudice is presumed, and this Court must analyze the remaining Barker factors.
B. Reason for the Delay
¶19. The State bears the burden of ensuring that the defendant is provided with a speedy trial.
Jackson v. State, 614 So. 2d 965, 969 (Miss. 1993). Therefore, any delay not attributable to the
defendant will count against the State, unless the State can show good cause for the delay. Polk v.
State, 612 So. 2d 381, 386 (Miss. 1992). Both the State and Magnusen were responsible for portions
of the thirteen month delay between the receipt of the supreme court's mandate and Magnusen's trial.
¶20. The first delay was the period of time between the receipt of the mandate on January 17, 1995,
and the extradition of Magnusen from the Oshkosh Correctional Facility in Wisconsin to Mississippi
on June 22, 1995. During the hearing on Magnusen's motion to dismiss, the district attorney's office
presented evidence relating to this time period. On January 20, 1995, the State made an oral motion
to reinstate the cause on the trial docket and requested the issuance of an alias capias which the court
granted. The State claimed that it mailed a notice of detainer and acknowledgment to Magnusen in
Wisconsin. The State argued that Magnusen refused to waive extradition because he wanted to
"finish a program" at the Wisconsin Correctional Facility. Magnusen denied this.
¶21. On March 20, formal extradition proceedings began. Ten days later, Mississippi's governor sent
a request for interstate rendition and an appointment of an agent to the Wisconsin's governor. On
June 7, the governor of Wisconsin directed the warden at the Oshkosh Correctional Facility to
contact the Harrison County Sheriff's Department and inform them when Magnusen would be
available for transport. On June 20, approval was given to move Magnusen to Mississippi, and he
arrived on June 22.
¶22. Based on this evidence, we find that this period of delay is neutral. The State moved relatively
promptly to have Magnusen returned to Mississippi. Regardless of whether Magnusen refused to
waive extradition or not, the record contains nothing to demonstrate that if Magnusen had consented
to extradition he would have been released any earlier from the Wisconsin facility.
¶23. The second period of delay occurred between July 7 and October 3. During this time period,
Magnusen's counsel filed a motion to withdraw as attorney of record. The court granted the motion
and appointed a new attorney. The State filed a motion for discovery on July 21. On July 24,
Magnusen filed, and the court granted, his motion for continuance until August 7. Magnusen's
attorney subsequently filed a motion for the clerk to make a copy of the court files. On September
20, the court granted defense counsel's motion for the appointment of co-counsel to assist in the
representation of Magnusen. On that same day, Magnusen filed a multi-faceted motion entitled,
"Request for Production and Inspection, Suppression, Appointment of Experts, Reservation of
Confrontation Rights, Demand for Speedy Trial, and Reservation to File other Motions." The court
granted Magnusen's request on October 3.
¶24. Where the defendant is responsible for delay, that period of time is weighed against him.
Johnson v. State, 666 So. 2d 784, 793 (Miss. 1995). "A delay caused by the withdrawal of the
defendant's attorney which entails allowing the new attorney a reasonable time to become familiar
with the case and prepare for trial cannot be weighed against the State because it is beyond the
State's control." Id. at 792. Thus, we weigh this period of time against Magnusen.
¶25. The final period of time was from October 6 until February 26, when Magnusen's trial began, a
period of approximately four and one-half months. On October 6, Magnusen's counsel filed a request
for a continuance based on heavy case loads, a pending petition in federal court, and delays in
discovery. A few days later, the trial court granted the request and reset the case for trial on
December 11. Magnusen filed a second request for discovery on October 13. On December 4,
Magnusen filed a motion to compel the director of the Oshkosh Correctional Facility to produce an
inmate synopsis and data sheet and a motion to dismiss for lack of a speedy trial. Magnusen signed a
speedy trial waiver effective from December 4 until February 26, 1996, the date of his new trial. On
December 11, Magnusen filed a motion for continuance because of a conflict with the December 11
trial date. A hearing on his speedy trial motion was held on February 5. The additional delay resulting
from these events weighs entirely against Magnusen.
C. Assertion of Right to Speedy Trial
¶26. As discussed above, the State bears the burden of bringing a defendant to trial in a speedy
manner. McGhee v. State, 657 So. 2d 799, 804 (Miss. 1995). While a defendant is not required to
demand a speedy trial, his assertion of such a right will weigh more heavily in his favor under the
Barker analysis. Johnson v. State, 666 So. 2d 784, 793 (Miss. 1995).
¶27. Magnusen arguably asserted his right to a speedy trial in a motion filed on September 20, 1995,
entitled "Defendant's Request for Production and Inspection, Suppression, Appointment of Experts,
Reservation of Confrontation Rights, Demand for Speedy Trial and Reservation to File other
Motions." Despite the title of the motion, no speedy trial demand was made in the text of the elevenpage document. During a September 29 hearing on the motion, neither party discussed the demand
for a speedy trial.
¶28. Shortly after filing his motion for a speedy trial, Magnusen filed several other motions that
materially contributed to the delay of his trial. On October 6, he requested a continuance and the trial
was reset for December 11. Magnusen also filed a motion to compel the director of the Wisconsin
facility to forward his records to Mississippi. On December 4, Magnusen filed a motion to dismiss
and executed a speedy trial waiver. On December 11, Magnusen filed another request for a
continuance and the trial was reset for February 26. The trial court denied Magnusen's motion to
dismiss following a hearing on February 5.
¶29. The defense counsel's actions were inconsistent with Magnusen's assertion of the right to a
speedy trial. The case was set for trial on two separate occasions, October 9 and December 11, but
was rescheduled due to circumstances beyond the State's control. Magnusen filed his motion to
dismiss seven days prior to his trial date and then requested an additional continuance on the day of
his trial. Because the delay following Magnusen's alleged September 20 demand for speedy trial was
attributable to his actions, we find that there was no meaningful demand. See Herring v. State, 691
So. 2d 948, 956 (Miss. 1997); Simmons v. State, 678 So. 2d 683, 687 (Miss. 1996).
D. Prejudice to the Defendant
¶30. The supreme court has recognized that a defendant may be prejudiced in two different ways by a
substantial delay. Skaggs v. State, 676 So. 2d 897, 901 (Miss. 1996). First, a delay may impair the
accused's defense because of the potential loss of evidence, the unavailability of witnesses, or the
erosion of a witness's memory. Id. Second, the defendant may suffer because of the restraint on his
liberty by his incarceration. Id. In support of such prejudice, the defendant may offer evidence of
oppressive pretrial incarceration, anxiety and concern, and impairment of his defenses. Johnson v.
State, 666 So. 2d 784, 793 (Miss. 1995). Although a defendant is not required to "make an
affirmative showing of prejudice to show that his right to a speedy trial was violated," without a
showing of any prejudice, this final factor cannot weigh in his favor. Polk v. State, 612 So. 2d 381,
387 (Miss. 1992).
¶31. During the hearing, Magnusen asserted several different theories of prejudice. He alleged that
the pending appeal before the Mississippi Supreme Court in conjunction with a letter from the
Harrison County District Attorney contributed to the denial of his parole request in Wisconsin.(1)
Magnusen also claimed that the delay impaired his ability to locate an alibi witness and resulted in the
spoilation of evidence. Finally, he argued that the Harrison County District Attorney's Office engaged
in selective prosecution.
¶32. With respect to pretrial incarceration, Magnusen was released following the dismissal of his case
on August 22, 1991. In September of 1992, Magnusen was sentenced by a Wisconsin court on
burglary and robbery charges. Although Magnusen asserted that he was denied parole in Wisconsin
because of the pending charges in Mississippi, he offered no evidence to support this assertion.
Magnusen alleged that the "parole lady" advised him that his parole was denied because of the
charges; however, the Wisconsin sentencing report does not contain any indication that parole was
denied based on the pending appeal in Mississippi. The overwhelming majority of the delay following
Magnusen's extradition to this State was attributable to Magnusen and not the State. Moreover,
incarceration alone is not sufficient prejudice to warrant reversal. Taylor v. State, 672 So. 2d 1246,
1261 (Miss. 1996).
¶33. Magnusen also contends that the delay in his trial resulted in his loss of an alibi witness who was
vital to his defense. While Magnusen admitted that he did not try to locate the witness before he
returned to Mississippi, he claimed that he attempted to locate her since his return but to no avail.
Magnusen stated that he was not able to provide his attorneys with her telephone number or her
address. On cross-examination, Magnusen stated that the witness could provide him with an alibi for
May 11. The State then noted that the present charges related to events that occurred on May 19. On
redirect, Magnusen argued that the witness could provide information about his activities during the
eight-day period.
¶34. In Rhymes v. State, 638 So. 2d 1270, 1274 (Miss. 1994), the defendant claimed that he suffered
the prejudice of a lost key witness as a result of the delay in his trial. The supreme court noted that
there was no indication that the defendant had secured the witness some time prior to trial and lost
him because of the delay. Id. The court concluded that the defendant's "total failure to attempt to
secure his appearance by subpoena [was] fatal to the claim of actual prejudice." Id.
¶35. Although Magnusen stated that he had contacted the witness's parents in an attempt to locate
her, the record does not contain any evidence that he diligently sought to secure her presence prior to
or at trial. Magnusen did not request the issuance of any subpoenas for the witness. Additionally, he
did not inquire as to whether someone else could provide him with an alibi for that day. Because
Magnusen exerted only the slightest effort in finding the witness and he contributed to much of the
delay, we find that this weighs only lightly in his favor.
¶36. Magnusen argued that he was prejudiced by the State's failure to preserve a blood sample from
the victim and a blood scraping from the scene. The fact that the crime laboratory permitted the
victim's blood sample to putrify was presented during the initial appeal. The supreme court
considered the precise issue in the original Magnusen appeal, though it did so under the second
Barker factor, the reason for the delay, rather than the prejudice prong. The court held that such
negligence by the crime laboratory should be weighed against the State but not heavily. Magnusen,
646 So. 2d at 1281. No allegation of prejudice arising from such spoilation of evidence was made by
Magnusen during the initial appeal. Regardless, the fact that the crime laboratory had to procure a
second blood specimen from the victim did not prejudice Magnusen in any way.
¶37. In regard to the blood scraping obtained from the victim's vehicle, Magnusen claims that the
crime laboratory failed to conduct Louis subtyping to determine more detailed characteristics of the
blood. However, during the trial, Debra Butler testified that it would have been extremely difficult, if
not impossible, to perform Louis subtyping on a dried blood sample. Once the blood is submerged in
a solution to determine the blood type, Butler testified that it is not possible to conduct further Louis
subtyping. Consequently, this weighs against neither party.
¶38. Though Magnusen also alleges that the Harrison County District Attorney engaged in selective
prosecution, the evidence presented during the hearing failed to support his allegation.
E. Totality of the Circumstances
¶39. A balance of the Barker factors fails to support Magnusen's allegation that he was denied his
constitutional right to a speedy trial. While there was some delay, the majority of the delay was
attributable to Magnusen. Magnusen's actions following his demand for a speedy trial were in
derogation of his assertion of his right to a speedy trial. Though such action is not fatal to his
assertion, he can claim little benefit from this factor. Moreover, the slight prejudice suffered by
Magnusen does not warrant a dismissal of the charges against him.
II. FAILURE TO DISPERSE FUNDS FOR FORENSIC EXPERT
¶40. Magnusen filed a motion for the appointment of a forensic expert to assist in the preparation of
his defense. During a pretrial hearing on the motion, the court noted that the defense had not
suggested the names of any proposed experts. In response, the defense counsel stated that he would
be "more than willing . . .to provide within the next five days a list of proposed experts within each
area . . . for consideration to be nominated as experts in this case along with a fee schedule and . . .
an estimated cost." The trial court accepted the defense counsel's offer, and at the conclusion of the
hearing, the court commented that it was the only outstanding motion. The court confirmed that the
defense counsel would furnish the names and the basis for the appointment of the expert. The record
does not indicate that the defense submitted a list of experts to the court.
¶41. During the trial, the defense moved for the appointment of a forensic pathologist to review the
records from the crime laboratory. The defense offered to provide the court with the names of three
pathologists "by the close of the business day." The court took the matter under advisement.
Following a short recess, the defense moved for a one-week continuance to prepare for crossexamination of the State's expert and to secure an independent pathologist. The court overruled the
motion for continuance.
¶42. The movant bears the responsibility of obtaining a ruling from the court on a motion filed by him
and his failure to secure such a ruling constitutes waiver. Johnson v. State, 461 So. 2d 1288, 1290
(Miss. 1984). Although the defense counsel stated that he would supply the court with a list of names
of potential forensic experts, he failed to do so.(2) Instead, the defense waited until midway through
the trial before bringing the motion to the court's attention. The record does not contain any
explanation concerning the defense's failure to comply with its earlier offer. Because the defense
failed to secure a timely ruling on the motion, we find that the trial court did not abuse his discretion
in denying the motion for a continuance.
III. FAILURE TO APPOINT A PRIVATE INVESTIGATOR
¶43. In some instances, a defendant is entitled to the appointment of non-legal personnel for the
preparation of his defense. Hansen v. State, 592 So. 2d 114, 125 (Miss. 1991). A defendant is
required to offer concrete reasons for requiring the assistance of an investigator. Duplantis v. State,
708 So. 2d 1327, 1346 (Miss. 1998). The attorney "should state specifically why he needs an
investigator. Why should an investigator be necessary to perform the tasks an attorney ordinarily
performs?" Butler v. State, 608 So. 2d 314, 321 (Miss. 1992).
¶44. Defense counsel asserted that he needed the assistance of an investigator generally because of
the passage of time, and specifically to locate potential witnesses and map the layout of the
neighborhood. In response, the State noted that the defendant had been appointed two attorneys for
the case. The court concluded that an investigator was not necessary at the time.
¶45. The investigator was to locate witnesses who were at a local bar on the night of the attack in
order to assist on an alibi. Magnusen did not offer any evidence that he knew the names of the
individuals in the bar or that the individuals could provide him with an alibi. Rather, Magnusen only
generally alleged that someone in the bar that night might have been able to assist with his defense.
Additionally, he failed to provide the trial court with the name or proposed cost of an investigator.
Magnusen had the assistance of two court-appointed attorneys. Absent a concrete explanation for the
necessity of an investigator, the trial court did not abuse its discretion in denying this request.
IV. SUPPRESSION OF EVIDENCE
¶46. In his next assignment of error, Magnusen alleges that the trial court committed reversible error
when it denied his motion to suppress blood and hair samples collected as part of a rape suspect kit.
Although Magnusen admits that he acquiesced to the collection of head and pubic hairs and executed
a waiver for the extraction of blood, he claims that the State failed to advise him of his right to refuse
such a request. As a result, Magnusen claims that his consent to the search was not a knowledgeable
waiver of his constitutional right to be free from unreasonable searches.
¶47. The Fourth Amendment of the United States Constitution guarantees the right to be free from
unreasonable searches and seizures. Despite the constitutional preference for searches conducted
pursuant to a warrant, both the United States Supreme Court and the Mississippi Supreme Court
have recognized certain exceptions to the warrant requirement. See Katz v. United States, 389 U.S.
347, 357 (1967); Watts v. State, 196 So. 2d 79, 86-87 (Miss. 1967). A voluntary consent to a search
is one of the specifically established exceptions. See Davis v. United States, 328 U.S. 582, 593-94
(1946); Quan v. State, 185 Miss. 513, 520, 188 So. 568, 569 (1939). Though it is evident that a
defendant may waive his right and consent to a search, the Mississippi Supreme Court at one stage
disagreed with the federal definition of voluntary consent.
¶48. The United States Supreme Court considers the voluntariness of a consent to search under a
totality of the circumstances. Schneckloth v. United States, 412 U.S. 218, 227 (1973). The State
must demonstrate that the consent was not the result of duress or coercion. Id. at 248. Although a
defendant's knowledge of his right to refuse a warrantless search is a factor to be taken into account,
the State is not required to demonstrate such knowledge as a prerequisite to establishing voluntary
consent. Id. at 249. The Mississippi Supreme Court held that the Mississippi Constitution affords
greater protection than the United States Constitution to an individual subject to a warrantless,
consensual search. Penick v. State, 440 So. 2d 547, 550 (Miss. 1983), relying on Miss. Const. Art 3,
§ 26. In Penick, the Court concluded that under the Mississippi Constitution proof beyond a
reasonable doubt was required that an individual was aware of his right to refuse, before consent to a
search could be found to be a knowledgeable waiver. Id. at 551.
¶49. The supreme court subsequently discussed Penick at length and found only that "consent is not
valid where the consenter is impaired or has a diminished capacity." Jones v. Mississippi Dep't of
Pub. Safety, 607 So. 2d 23, 28 (Miss. 1991). The defendant, and not the State, bore the burden of
establishing that he was impaired or had a diminished capacity. Id. Absent a showing by the
defendant of such impairment or lack of capacity, the court held that it would apply the same test for
valid consent as the federal standard. Id. The court unequivocally concluded that the "State is not
required to demonstrate knowledge." Id. Thus the Penick rule was significantly relaxed.
¶50. The court's conformity with the federal standard for determining whether the consent was
voluntary is further evidenced by the recent case of Graves v. State, 708 So. 2d 858 (Miss. 1997).
The court quoted Jones to hold that there was no need for the State to show knowledge of the right
to refuse. Id. at 863. The defense must show impaired consent or diminished capacity. Id. In essence,
it is presumed that a request from police as opposed to a demand is sufficient for a defendant to
know that he has a choice. Only if there is proof that a particular defendant has less than normal
ability to reason will the State's obligation to prove knowledge arise. See also Gazaway v. State, 708
So. 2d 1385, 1388-89 (Miss. Ct. App. 1998) (recognizing limitation on Penick requirements).
¶51. Magnusen never claimed that he had suffered from an impairment or had a diminished capacity.
He admitted that he consented to the State's procurement of hair and blood samples and only alleged
that he was not informed of the right to refuse such a request. The State offered the testimony of
Detective Danny Holloway, who testified that he fully informed Magnusen of his rights including his
right to refuse. Magnusen denies this. The trial court evaluated the testimony and the evidence under
the totality of the circumstances. The court considered Magnusen's age, the time of the search, and
the fact that Magnusen had been informed of Miranda rights. After weighing the evidence, the court
held that Magnusen had validly consented. We find no error.
V. FAILURE TO SUPPRESS THE TESTIMONY OF EXPERT WITNESS
¶52. Prior to the commencement of the trial, the defense counsel objected to the State calling Dr.
Moran as a witness. Dr. Moran, an emergency room physician, examined the victim and performed a
sexual assault kit. Although the State listed Dr. Moran as a witness and provided the defense with his
reports prior to trial, the State failed to furnish the defense with a copy of Dr. Moran's curriculum
vitae. Magnusen argued that the State's violation of the discovery order prevented his ability to crossexamine Dr. Moran adequately. Without the curriculum vitae, Magnusen claimed that he was not able
to verify the doctor's training and expertise.
¶53. The trial court requested that the defense suggest a curative action to the discovery violation.
The defense asserted that there was not an adequate curative measure other than to grant a mistrial.
In response, the State offered to furnish the defense with a copy of Dr. Moran's resume and to make
the doctor available for the defense to interview. The trial judge noted that he could not "anticipate
what need or benefit would flow as a result of the furnishing" of the resume. The court subsequently
granted the defense a continuance until the following morning and ordered the State to promptly
furnish the defense with a copy of Dr. Moran's resume.
¶54. The next morning the defense counsel informed the court that the State had complied with the
court's order. However, the defense attorney renewed his motion for a mistrial, or in the alternative
to strike the doctor as a witness, based on the assertion that he was not prepared to cross-examine
the witness. He also argued that he was not able to verify the doctor's qualifications. The State
advised the court that it had not only provided the defense with the doctor's resume, but it had also
attempted to make the doctor available for the defense. The State noted that the defense declined to
interview the doctor. Accordingly, the trial court permitted the doctor to testify and imposed a $500
sanction against the State's attorney. Dr. Moran testified the following day.
¶55. Rule 9.04 of the Uniform Circuit and County Court Rules sets forth the appropriate procedure
and remedies for the trial court to consider in resolving discovery violations. URCCC 9.04 (I). The
Rule provides that if a "party has failed to comply with an applicable discovery rule . . . the court may
order such party to permit the discovery of material and information not previously disclosed, grant a
continuance, or enter such other order as it deems just under the circumstances. URCCC 9.04 (I).
¶56. Evidentiary rulings are within the broad discretion of the trial court and will not be reversed
absent an abuse of discretion. Coleman v. State, 697 So. 2d 777, 784 (Miss. 1997). We find no clear
abuse of discretion. The factual omission was the resume of the doctor. The court ordered the
resume to be provided. The resume was delivered; the defense was given a continuance until the
following day. The doctor did not testify until the following day. The defense knew for some time
prior to trial of Dr. Moran's identity and the substance of his testimony. The defense was given the
opportunity to interview Dr. Moran and to voir dire him prior to the court's acceptance of him as an
expert, but the defense declined. We find these to be appropriate rulings and there was no error.
VI. WEIGHT OF THE EVIDENCE
¶57. Magnusen asserts that the trial court erred in denying his motion for a new trial because the
verdict was against the overwhelming weight of the evidence. He contends that the only physical
evidence that linked him to the crime scene was a pubic hair that was obtained in violation of his
Fourth Amendment right. Additionally, Magnusen claims that he was not the perpetrator of the
crimes because the victim informed the investigating officer that she had bitten through the attacker's
sock-covered arms. When Magnusen was arrested, he argues that there was no evidence that he
suffered from such a bite. Magnusen argues that the State failed to establish beyond a reasonable
doubt that he committed the crimes, and thus, the verdict is contrary to the weight of the evidence. In
reviewing the decision of the trial court, this Court views all of the evidence in the light consistent
with the jury verdict. Strong v. State, 600 So. 2d 199, 204 (Miss. 1992). A motion for a new trial
should only be granted to prevent an unconscionable injustice. McClain v. State, 625 So. 2d 774, 781
(Miss. 1993). Accordingly, we will reverse and remand for a new trial only upon reaching the
conclusion that the trial court has abused its discretion in failing to grant a new trial. Herring v. State,
691 So. 2d 949, 957 (Miss. 1997).
¶58. In the face of Magnusen's assertions, the jury heard the testimony from several witnesses who
testified to facts that would indicate Magnusen's guilt. The officer responding to the scene observed
an individual matching the victim's description at a nearby bar. The individual fled when the officer
attempted to stop and question him. After reviewing several photographs at the police station, the
officer identified the individual as Magnusen. The victim also positively identified Magnusen in a
photographic line-up, in a subsequent line-up, and at the trial. Furthermore, a pubic hair recovered
from the victim's bedroom exhibited the same characteristics as Magnusen's hair. None of this
evidence was incredible, unbelievable, or substantially impeached. The jury was entitled to conclude
that the proof established guilt of the crimes.
¶59. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF
CONVICTION OF COUNT I, BURGLARY OF AN OCCUPIED DWELLING AND
SENTENCE OF EIGHT YEARS TO RUN CONCURRENTLY WITH COUNT III; COUNT
II, AGGRAVATED ASSAULT, AND SENTENCE OF FIFTEEN YEARS TO RUN
CONSECUTIVELY TO COUNT IV; COUNT III, ROBBERY, AND SENTENCE OF
FIFTEEN YEARS TO RUN CONSECUTIVELY TO COUNT II; COUNT IV, RAPE, AND
SENTENCE OF FORTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
TAXED TO HARRISON COUNTY.
BRIDGES, C.J., McMILLIN, P.J., AND COLEMAN, DIAZ, HERRING, HINKEBEIN,
KING, AND PAYNE, JJ., CONCUR.
THOMAS, P.J., NOT PARTICIPATING.
1. In a letter dated August 27, 1992, to an assistant district attorney in Wisconsin, the Harrison
County District Attorney noted that the Wisconsin Probation Parole Office was currently completing
a pre-sentence report on Magnusen. Although the State asserted that the Wisconsin officials had
requested information on Magnusen, the letter is silent to any such request. The district attorney
stated that he had "encountered no individual anymore dangerous than David Magnusen." The
remainder of the letter then set forth the alleged criminal history of Magnusen.
2. On November 17, 1995, Magnusen filed a designation of expert. Magnusen listed Charles Linck as
an expert with respect to trace evidence including, but not limited to, analysis of hair evidence. The
court papers reveal that the court approved the payment of $925 in consultation fees.
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