James R. Rushing, Jr. v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-00438-COA
JAMES R. RUSHING, JR. A/K/A DEVIL CATCHER
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
10/12/2001
HON. ROBERT WALTER BAILEY
LAUDERDALE COUNTY CIRCUIT COURT
JAMES A. WILLIAMS
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
BILBO MITCHELL
CIVIL - POST-CONVICTION RELIEF
POST-CONVICTION COLLATERAL RELIEF
DENIED.
AFFIRMED - 09/23/2003
BEFORE MCMILLIN, C.J., THOMAS AND CHANDLER, JJ.
THOMAS, J., FOR THE COURT:
¶1.
James R. Rushing, Jr., a/k/a Devil Catcher, appeals an order of the Circuit Court of Lauderdale
County denying his petition for post-conviction relief. Aggrieved, Rushing asserts the following issues on
appeal:
I.
WHETHER A DEFENDANT IS DENIED DUE PROCESS OF LAW AND
FUNDAMENTAL FAIRNESS WHEN THE HEARING JUDGE FINDS THAT HAD
THE RECANTING WITNESS TESTIFIED THERE WAS NO WAY TO KNOW
WHAT SHE WOULD SAY, WHETHER TO SUPPORT HER TRIAL TESTIMONY
OR RECANT IT, AND DENIES A NEW TRIAL BY FINDING THAT RECANTING
DEPOSITION WAS THE RESULT OF PRESSURE, WHERE THE ULTIMATE
FINDING OF TRUTH AT TRIAL IS CLEARLY ERRONEOUS AND NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE AND A NEW TRIAL SHOULD BE
ORDERED.
II.
WHETHER THE STANDARD OF REVIEW IS ONE OF DE NOVO RATHER
THAN DEFERENCE WHEN THE HEARING JUDGE REFLECTS IN HIS OPINION
AND RULING THAT THE RECANTING WITNESS CANNOT BE RELIED UPON
TO TELL THE TRUTH, BUT FAULTS THE PRISONER FOR NOT CALLING HER
AS HIS WITNESS WHERE THE DISTRICT ATTORNEY HAS OBTAINED HER
AFFIDAVIT REAFFIRMING HER TRIAL TESTIMONY AND THAT SUCH
BELIEF IN THE FINAL DISTRICT ATTORNEY'S AFFIDAVIT REFLECTS THAT
THE HEARING JUDGE HAS ACCEPTED THE BELIEF THAT THE DISTRICT
ATTORNEY'S AFFIDAVIT IS THE TRUTH WITHOUT SUFFICIENT EVIDENCE
AND A NEW TRIAL SHOULD BE ORDERED.
III.
WHETHER A DEFENDANT IS DENIED DUE PROCESS OF LAW, THE RIGHT
TO CONFRONTATION AND FUNDAMENTAL FAIRNESS WHEN A
RECANTING VICTIM'S HEARSAY STATEMENTS TO THE DISTRICT
ATTORNEY ARE ALLOWED INTO EVIDENCE RESULTING IN A FINDING
THAT THE RECANTING DEPOSITION AND AFFIDAVITS WERE THE RESULT
OF PRESSURE, WHEN THE RECANTING VICTIM HAS BECOME THE
DISTRICT ATTORNEY'S WITNESS IN AN AFFIDAVIT ON THE EVE OF THE
POST-CONVICTION RELIEF HEARING WHERE SHE REAFFIRMS HER TRIAL
TESTIMONY BUT THE DISTRICT ATTORNEY DOES NOT CALL HER TO THE
STAND.
IV.
WHETHER THE TRIAL JUDGE ABUSED HIS DISCRETION UPON A HEARING
OF THE PRISONER'S MOTION FOR RECONSIDERATION WHICH ATTACHED
AFFIDAVITS WHICH MATERIALLY CONTRADICTED THE STATE'S
EVIDENCE AT THE EVIDENTIARY HEARING BY REFUSING TO CONSIDER
THE AFFIDAVITS AND REFUSING TO RECONSIDER THE DENIAL OF POSTCONVICTION RELIEF AND THUS DEFENDANT IS DENIED DUE PROCESS OF
LAW, THE RIGHT TO CONFRONTATION AND FUNDAMENTAL FAIRNESS.
Finding no error, we affirm.
FACTS
¶2.
James R. Rushing, Jr. was convicted in the Circuit Court of Lauderdale County of aggravated
assault and rape and was sentenced to twenty years on the aggravated assault and ten years on the rape
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conviction. On direct appeal the conviction and sentences were affirmed by this Court. On Rushing's
petition for rehearing, the original opinion was withdrawn and the rape conviction and sentence were
affirmed while the aggravated assault conviction was reversed and remanded. Rushing v. State, 753 So.
2d 1136 (Miss. Ct. App. 2000). Rushing filed a petition for certiorari with the Mississippi Supreme Court
which was denied on April 17, 2000. Rushing then filed a petition for post-conviction relief with the
Mississippi Supreme Court that was denied in part and granted in part with regard to the issue of "victim's
recanted testimony." Rushing v. State, No. 2000-M-01803 (Miss. Aug. 8, 2001).
¶3.
The victim gave two affidavits where she denied a rape had occurred and admitted to lying and
exaggerating the circumstances. Several months later, the victim gave an affidavit to the district attorney
saying she was coerced into recanting her testimony and she reaffirmed her trial testimony that she was
raped by Rushing. A post-conviction evidentiary hearing was held on September 19, 2001. Rushing was
represented by counsel, and the trial court heard testimony from Rushing, the victim's attorney, Rushing's
appellate counsel, and a relative of the victim. Various affidavits of the victim were admitted into evidence
as well as her deposition. The victim did not testify. After the hearing, the trial court denied Rushing's
motion for post-conviction relief. Rushing filed a motion for reconsideration and another hearing was held
where the trial court denied the motion. Rushing then perfected an appeal to this Court.
ANALYSIS
¶4.
Rushing's assignments of error all essentially present the same argument. Rushing is aggrieved
because the State did not call the rape victim to testify at the evidentiary hearing. Lacking the victim's
testimony, the trial judge made his decision based upon other testimony and evidence presented by both
the defendant and the State. An evidentiary hearing is held so that the trial court can better evaluate the
testimony of the recanting witness. Hardiman v. State, 789 So. 2d 814, 817 (¶12) (Miss. Ct. App.
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2001). On remand to the trial court, the burden is on the defendant as petitioner to establish the facts by
a preponderance of the evidence that he would be entitled to the relief he seeks. Payton v. State, 845 So.
2d 713, 716 (¶8) (Miss. Ct. App. 2003). This Court is thus reviewing an ultimate finding of fact, made by
the trial judge sitting without a jury. Yarborough v. State, 514 So. 2d 1215, 1220 (Miss. 1987). The
standard of review after an evidentiary hearing in post-conviction relief cases is well settled: "We will not
set aside such a finding unless it is clearly erroneous." Reynolds v. State, 521 So. 2d 914, 918
(Miss.1988). Even if there is evidence to support the defendant's claims, we will not vacate such a finding
unless after examining all of the evidence we are left with the definite and firm conviction that a mistake has
been made. Id.
¶5.
At the hearing, Rushing chose not to call the victim as a witness, because as he states in his reply
brief, "she had been coerced by the District Attorney and his staff to give an affidavit wherein she attempted
to repudiate the recantations presented by Rushing." Instead, Rushing through counsel presented the
deposition of the victim taken by his counsel where she purportedly recanted her trial testimony. Rushing
himself testified as well. The record shows that the victim was present in the courthouse and was therefore
available to testify if called. The State presented the affidavit of the victim which explained that the recanted
testimony was coerced and that she was tired of the phone calls she was receiving and that she could not
live with herself if she did not tell the truth. After hearing the evidence, the trial court found that the trial
testimony and most recent affidavit at the district attorney's office affirming the trial testimony were truthful,
and that the deposition taken by Rushing's counsel was coerced.
¶6.
Rushing now asserts that this Court should adopt a de novo standard of review for this appeal.
It is the opinion of the State that the case at bar is a factual issue and that the trial judge applied the correct
legal standard in his conclusions of law. We agree. The appropriate standard of review for denial of post4
conviction relief after an evidentiary hearing is the clearly erroneous standard. Reynolds, 521 So. 2d at
917-18. Rushing is aggrieved because the victim did not testify at the evidentiary hearing. The burden of
proof was on him, however, and he had the opportunity to call the victim; he declined. "[I]t is the right and
duty of the [trial] court to deny a new trial where it is not satisfied that such [recantation] testimony is true.
Especially is this true where the recantation involves a confession of perjury." Turner v. State, 771 So.
2d 973, 977 (¶12) (Miss. Ct. App. 2000) (quoting Bradley v. State, 214 So. 2d 815, 817 (Miss. 1968)).
The trial court was not only presented with a recantation by deposition, but with an affidavit that the
recantation was coerced. The trial court did not err in its rulings and Rushing did not meet his burden of
proof.
¶7.
THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY
DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING,
MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
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