James D. Boggan v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-KA-02120-COA
JAMES D. BOGGAN A/K/A JAMES DOUGLAS
BOGGAN
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:
APPELLANT
APPELLEE
11/21/2002
HON. LARRY EUGENE ROBERTS
LAUDERDALE COUNTY CIRCUIT COURT
JAMES A. WILLIAMS
OFFICE OF THE ATTORNEY GENERAL
BY: CHARLES W. MARIS
BILBO MITCHELL
CRIMINAL - FELONY
CONVICTED OF THREE COUNTS OF
STATUTORY RAPE AND SENTENCED TO
THREE CONCURRENT THIRTY YEAR TERMS
IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
AFFIRMED: 07/27/2004
BEFORE SOUTHWICK, P.J., IRVING AND GRIFFIS, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
James D. Boggan was convicted of three counts of statutory rape and was sentenced to serve three
concurrent thirty year terms in the custody of the Mississippi Department of Corrections. On appeal,
Boggan asserts eight errors. Finding no merit to Boggan’s appeal, we affirm. Because many of the issues
actually fall under the same claim for relief, we combine our discussion of the related issues.
FACTS
¶2.
Boggan, a twenty-year-old man, was indicted on three counts of statutory rape of a thirteen-year-
old girl, B.K. Boggan became acquainted with B.K.’s family as a result of his close friendship with her
oldest brother. Boggan was a friend, regular visitor, and occasional overnight guest of her family.
¶3.
After B.K.’s mother noticed that Boggan acted differently around B.K., she asked Boggan not to
return to their house. Shortly thereafter, B.K. and Joey, the younger of B.K.'s two older brothers, began
sneaking out of their house to meet Boggan. Upon returning from the third of these meetings, B.K.’s
mother caught B.K. sneaking back into the house. B.K. confessed to her mother that she had been
sneaking out to see Boggan and that she had sex with Boggan on three separate occasions, during April
and May of 2001.
¶4.
At trial, B.K. testified that for a short time during April of 2001 she slept on the couch near her
mother's bedroom because she was sick. Boggan awoke her on one of these nights, and they had sex on
the couch. B.K. also testified that, in May of 2001, she began sneaking out of the house to meet Boggan.
B.K. and Boggan used a telephone signaling scheme to know when to meet. The scheme consisted of
either Boggan or her calling, letting the phone ring once, and then hanging up. They would then meet
afterwards. On one of these occasions, B.K. and Boggan had sex in a pasture near her house, and on the
other occasion, they had sex in a barn near her house.
¶5.
Joey testified that on one of the occasions he also met Boggan. He testified that on that occasion
Boggan asked to have some time alone with B.K. to talk. He also testified regarding the phone signaling
scheme.
¶6.
Boggan testified that he stayed at B.K.'s house during April of 2001 and that he slept on the couch.
However, he denied ever having sex with B.K. and denied sneaking out to meet her. According to
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Boggan's testimony, the reason B.K.'s mother asked him not to return to their house was because he
mentioned to the mother that he may want to ask B.K. out for a date once she turned eighteen years old.
¶7.
The jury found Boggan guilty on all three counts of statutory rape. Boggan's motion for a new trial
was denied. He appeals his convictions and sentence.
ANALYSIS
I.
Whether the trial court denied Boggan a fair trial, equal protection of the
law, and due process.
a.
¶8.
Jury panel composed of over fifty percent females.
Boggan argues that he was denied a fair trial because over fifty percent of the jurors were female.
Boggan claims that the State purposefully selected women to be on the jury and that the State's use of its
peremptory challenges against males created an inference of purposeful discrimination. He argues that the
trial court erred in failing to require the State to provide a non-gender reason for its peremptory challenges.
¶9.
During jury selection, the State challenged two of the twelve eligible venire members. The court
asked for objections following each challenge. In response to the first challenge, defense counsel
responded: "Yes, sir. I don't know why. He never said a word. He never said a word." The court
explained that he was asking if there was a gender, race, or religion objection. The defense counsel replied,
"Yes, sir. He never said a word. There's no reason to." The court ruled that there was no prima facie case
of racial, gender, or religious discrimination for striking the venire member. In response to the second
challenge, defense counsel replied that there was no objection. The jury selection continued with Boggan
exercising peremptory challenges on a female and then a male. After these challenges the jury of twelve
was in place.
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¶10.
Based on our review of the jury selection, Boggan's defense counsel never voiced a gender
discrimination objection to the State's use of its peremptory challenges. Defense counsel merely posed a
general objection that there was no reason to challenge the first venire member. In Chase v. State, 645
So. 2d 829, 843-44 (Miss. 1994), our supreme court held that the failure to make a contemporaneous
objection to challenges based on gender procedurally barred raising the issue on appeal. Boggan, by not
raising a gender discrimination objection during jury selection, may not now raise the issue on appeal.
¶11.
Even assuming the issue is properly before this Court, it is without merit. In order to establish a
prima facie case of purposeful discrimination in jury selection a criminal defendant must show: (1) that he
is a member of a "cognizable racial group," (2) that the prosecutor has exercised peremptory challenges
toward the elimination of venire members of his race, and (3) that the facts and circumstances raised an
inference that the prosecutor used his peremptory challenges for the purpose of striking minorities. Batson
v. Kentucky, 476 U.S. 79, 96 (1986), Lockett v. State, 517 So. 2d 1346, 1349 (Miss. 1987). Once
the prima facie case of purposeful discrimination is met, the State is compelled to come forward with a
neutral explanation. Batson, 476 U.S. at 97, Lockett, 517 So.2d at 1349. The trial court should then
determine, on the record, whether each of the State's reasons for striking minority jurors is, in fact, racially
neutral. Conerly v. State, 544 So. 2d 1370, 1372 (Miss. 1989).
¶12.
Although Batson, Lockett, and Conerly all concerned racial discrimination, our supreme court has
held that all of the case law following Batson also applies to gender discrimination issues. Bounds v. State,
688 So.2d 1362, 1366 (Miss.1997).
¶13.
A great deal of deference is accorded to the trial court in examining alleged discrimination when
exercising peremptory challenges. Spann v. State, 771 So. 2d 883, 904 (¶61) (Miss. 2000). We, as an
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appellate court, will not reverse factual findings relating to a Batson challenge unless they are clearly
erroneous. Johnson v. State, 529 So. 2d 577, 583 (Miss. 1988).
¶14.
The trial court ruled that Boggan failed to establish a prima facie case of gender discrimination. The
court based this ruling on the defense counsel's failure to allege any gender discriminatory objections to the
State exercising its peremptory challenges. The record supports this finding. We find no error in the trial
court’s ruling that Boggan failed to establish a prima facie case of gender discrimination.
¶15.
Since the trial court ruled that Boggan failed to establish a prima facie case of gender discrimination,
the court's refusal to require the State to provide a non-gender reason for its peremptory challenges was
proper. This assignment of error is without merit.
b.
¶16.
Prejudicial comments.
Boggan contends that certain jury instructions constituted a comment on the evidence and thus
denied him a fair trial, fundamental fairness, and due process. Although his arguments are rather confusing
and rambling, the essence of Boggan’s argument is that he was prejudiced by (1) the use of the word
"victim" in jury instructions S-1, S-2, S-3, and S-5, (2) the use of the pronoun "her" in jury instruction S-5,
(3) the judge granting the consent instruction S-5, and (4) the judge responding to a defense hearsay
objection by ruling "I think it's offered for the fact that it was stated, not for the truth of the matter.
Objection is overruled."
¶17.
Since Boggan did not object to jury instructions S-1, S-2, and S-3, his claims involving these
instructions are procedurally barred. Gray v. State, 728 So. 2d 36, 74 (¶197) (Miss. 1998). Boggan's
attorney was specifically asked if he had an objection to instructions S-1, S-2, and S-3. He replied that
he did not. Where a defendant fails to contemporaneously object to an instruction at trial, he is
procedurally barred from raising the issue on appeal. Id.
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¶18.
Boggan objected to instruction S-51 on the grounds that the instruction was unnecessarily given
because he had not raised consent as a defense. Now on appeal, Boggan expands this objection and
argues that the instruction constituted a comment on the evidence. In Fulgham v. State, 770 So. 2d 1021,
1023 (¶4) (Miss. Ct. App. 2000), this Court ruled that "[a] defendant is procedurally barred from raising
an objection on appeal that is different than that raised at trial."
Accordingly, Boggan is procedurally
barred from raising this issue on appeal.
¶19.
Even had these issues been properly before this Court, they lack merit and warrant little discussion.
¶20.
This Court has previously ruled that the use of the word "victim" in jury instructions does not
constitute a comment on the evidence. Kearley v. State, 843 So. 2d 66, 69 (¶11) (Miss. Ct. App.
2002). Accordingly, there was no error in granting instructions S-1, S-2 or S-3.
¶21.
Jury instruction S-5 does not contain the word "her" as Boggan asserts. Nonetheless, we fail to
see how the use of the pronoun "her" could constitute a comment on the evidence. Also, the judge's
response to the defense's hearsay objection of "I think it's offered for the fact that it was stated, not for the
truth of the matter" does not constitute a comment on the evidence. The response was merely a reflection
of the definition of hearsay.
¶22.
In granting the consent instruction, the trial court relied, in part, on the examining doctor's testimony.
The doctor testified that the pelvic examination he performed on B.K. revealed results that would have been
normal for an adult woman. He testified that, based on his examination, it was obvious that B.K. was
1
Instruction S-5 reads:
The court instructs the Jury that a child under the age of fourteen (14) years is not
legally capable of consenting to sexual intercourse with a person who is more than twenty four
(24) months older. Consent or willingness on the part of a victim under the age of fourteen (14)
years, where the Defendant is more than twenty four (24) months older is no defense to
Statutory Rape.
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sexually active. He testified that B.K. lacked a hymen, which is the covering of the vagina normally found
in young females who are not sexually active. The defense counsel specifically questioned the doctor about
whether he found any bruises, lacerations, or other injuries to B.K. that might indicate that some kind of
force was used. The doctor testified that he found no such injuries.
¶23.
Although B.K.’s testimony arguably established that she willingly had sex with Boggan, she also
testified to feeling persuaded and scared. There was also testimony that, if believed, could lead the jury
to conclude that B.K. was infatuated with the older Boggan. Based on this testimony and the doctor's
testimony, the trial court concluded that there were sufficient facts in the record that justified giving the
consent instruction.
¶24.
Jury instructions will not be reversed if, when read as a whole, they announce the law of the case
and create no injustice. Johnson v. State, 823 So. 2d 582, 584 (¶4) (Miss. Ct. App. 2002). Based on
the testimony presented at trial and the facts of the case, the jury instructions given in this case adequately
announced the law and created no injustice. Therefore, this assignment of error is without merit.
c.
¶25.
State's use of leading questions to a fifteen-year-old victim.
Boggan claims that the State's use of leading questions to the fifteen-year-old victim2 denied him
a fair trial, denied him the right to confrontation, and resulted in a failure to show proof beyond a reasonable
doubt. He asserts that B.K. only testified to the three alleged acts through objectionable leading testimony.
¶26.
The record reflects that Boggan made two leading question objections at trial. The trial court
sustained the first objection. The State withdrew the second objection. The questions about which Boggan
now complains were not objected to at trial, and are thus procedurally barred. We have consistently held
2
B.K. was thirteen years old when the sexual acts occurred and fifteen at the time of the trial.
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that failure to make a contemporaneous objection bars the issue from being raised on appeal. Bozeman
v. State, 836 So. 2d 788, 791 (¶11) (Miss. Ct. App. 2002).
¶27.
Assuming the issue is properly before this Court, it is without merit. Trial courts are given a great
deal of discretion in permitting the use of leading questions. Whitlock v. State, 419 So. 2d 200, 2003
(Miss. 1982). Unless there has been a manifest abuse of discretion resulting in injury to the complaining
party, we will not reverse the trial judge's decision. Id. In Ivy v. State, 522 So. 2d 740, 742 (Miss.
1988), our supreme court held:
Both rules [M.R.E. 611(c) and F.R.E. 611(c)] acknowledge that leading questions may
be necessary to develop the testimony. "Children are a classic example of the kinds of
witnesses for whom leading questions may be necessary." 3 Weinstein's Evidence, para.
611[05] (1987).
¶28.
Here, B.K. was fifteen years old at the time of trial. Given her age and the amount of discretion
accorded the trial court in permitting leading questions, we find that the trial court did not abuse his
discretion in allowing B.K. to testify as she did.
¶29.
The record does not support Boggan's claim that B.K. only testified to the three alleged acts
through objectionable leading testimony. Based on our review of the record, B.K. independently testified
to each of the three acts. Although some leading questions were used in questioning B.K., there is colloquy
in the record that reveals B.K. testified, on her own accord, to each of the three acts. This assignment of
error is without merit.
d.
¶30.
Brother of the victim testifying without limiting instruction.
Boggan alleges that Joey was an accomplice, and therefore, the trial court should have given the
jury a cautionary instruction about his testimony. However, Boggan did not request such an instruction
8
during trial. In Kelly v. State, 778 So. 2d 149, 152-53 (¶¶18-19) (Miss. Ct. App. 2000), this Court
declined to assign error when such an instruction was not requested. We held:
the granting of a cautionary instruction with regard to accomplice testimony is discretionary
with the trial court. Wheeler v. State, 560 So. 2d 171, 172 (Miss. 1990). Here, no
request for the instruction was made.
We are referred to a precedent that the trial court should grant a limiting instruction even
when one is not requested when prior convictions are used for impeachment. Peterson
v. State, 518 So. 2d 632 (Miss. 1987). That precedent remains controlling authority, but
a similar rule has never been adopted for instructing jurors about the testimony of
accomplices. We do not find similar risks to an accused in the two situations. We will not
create the legal precedent that Kelly seeks.
Accordingly, there was no error in this case by the trial court not giving a cautionary instruction since no
request for such instruction was made. This assignment of error is without merit.
e.
¶31.
Hearsay evidence admitted.
Boggan asserts that the court erred in allowing B.K.'s mother to testify regarding B.K.'s confession
that she was having sex with Boggan. He argues that this testimony is hearsay and that by allowing it into
evidence the court denied him a fair trial and due process of law.
¶32.
Once again, Boggan did not object to this testimony at trial. In Baine v. State, 606 So. 2d 1076,
1079 (Miss. 1992), the court ruled that the defendant's failure to object to hearsay testimony at trial,
rendered the issue not preserved for appeal. We hold that Boggan has not properly preserved this issue
for appeal. This assignment of error is without merit.
II.
¶33.
Whether Boggan's sentence was excessive and not permitted.
Boggan asserts that jury instructions S-1, S-2, and S-3 were peremptory because they contained
the language "who was over the age of 18 years." He claims that this language in the instructions removed
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the issue of his age from the jury. Boggan argues that because the jury did not find that he was eighteen
years old, he received an improper and excessive sentence.
¶34.
As we discussed above, Boggan failed to object to instructions S-1, S-2, and S-3. Where a
defendant fails to contemporaneously object to an instruction at trial, he is procedurally barred from raising
this issue on appeal. Gray v. State, 728 So. 2d 36, 74 (¶197) (Miss. 1998). Since Boggan did not
object to these instructions at trial, he may not challenge these instructions on appeal.
¶35.
Nonetheless, this issue lacks merit. The instructions Boggan complains of merely charge the jury
on the elements of statutory rape. Jury instructions will not be reversed if, when read as a whole, they
announce the law of the case and create no injustice. Johnson v. State, 823 So. 2d 582, 584 (Miss. Ct.
App. 2002). Based on our review of the record, we find that instructions S-1, S-2, and S-3, when read
with the rest of the jury instructions, merely announce the law of the case and do not create an injustice.
¶36.
Boggan was sentenced to three concurrent thirty year terms for his three statutory rape convictions.
Mississippi Code Annotated Section 97-3-65(2)(c) establishes the sentencing range for a person eighteen
years or older who is convicted of statutory rape. The statute provides a minimum penalty of twenty years
imprisonment and a maximum penalty of life imprisonment. Id. Boggan's sentence of three concurrent
thirty year terms for his three counts of statutory rape was well within the sentencing range established by
statute. Sentencing that is within the limits prescribed by statute is within the complete discretion of the trial
court and is not subject to appellate review. Nichols v. State, 826 So. 2d 1288, 1290 (¶10) (Miss.
2002). Therefore, this assignment of error is without merit.
III.
Whether Boggan received ineffective assistance of counsel.
10
¶37.
Boggan identified six areas in which he claims his attorney's performance was ineffective, that his
attorney: (1) failed to object to consistently material leading questions, (2) failed to object to hearsay, (3)
failed to obtain a limiting instruction on accomplice testimony, (4) failed to cross-examine the doctor
concerning his testimony that B.K. had a "woman's vagina," (5) failed to exercise peremptory strikes to
avoid a jury that contained nine women jurors, and (6) failed to object to assumptions of fact in jury
instructions.
¶38.
We find no merit in Boggan's claims of ineffective assistance of counsel. To prevail on a claim of
ineffective assistance of counsel, a defendant must demonstrate that (1) his attorney's performance was
substandard and (2) that a proper performance by his attorney would have caused a different result.
Clemons v. State, 732 So. 2d 883 (¶ 35) (Miss. 1999). With respect to the overall performance of the
attorney, "counsel's choice of whether or not to file certain motions, call witnesses, ask certain questions,
or make certain objections falls within the ambit of trial strategy." Scott v. State, 742 So. 2d 1190 (¶14)
(Miss. Ct. App. 1999); Cole v. State, 666 So. 2d 767, 777 (Miss. 1995). Attorneys are permitted wide
latitude in their choice and employment of defense strategy. Hiter v. State, 660 So. 2d 961, 965
(Miss.1995).
¶39.
We find nothing in Boggan's claims which, even if accepted as true, would have the likely effect of
changing the outcome of this case. Although Boggan's current counsel may have made different decisions
regarding the above mentioned assigned errors, none of the alleged actions or inactions amount to
ineffective assistance of counsel. We conclude that the counsel's decisions that Boggan now complains of
were strategic. Given the wide latitude that is allowed attorneys in employing their defense strategy, we
find that Boggan's trial counsel's performance was not ineffective. This assignment of error is without merit.
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IV.
¶40.
Whether Boggan is entitled to a new trial.
Boggan asserts that he is entitled to a new trial because the evidence was insufficient to convict him.
In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must
accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit
court has abused its discretion in failing to grant a new trial. Dudley v. State, 719 So. 2d 180, 182 (¶8)
(Miss. 1998). For this Court to disturb the verdict on appeal, it must be so contrary to the overwhelming
weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Id.
¶41.
At trial, B.K. testified that she and Boggan had sex on three occasions. She testified that one of
these occasions occurred on the couch in her house. She testified that the other two occasions occurred
when she had sneaked out to meet Boggan during the night. Joey testified that he accompanied his sister
on one of the nights when she sneaked out to meet Boggan. He testified that he left his sister alone with
Boggan on that occasion. B.K.’s mother testified that she caught B.K. sneaking into the house early in the
morning following one of the occasions. She testified that B.K. confessed to her that she had been sneaking
out to see Boggan and that she had had sex with him. Boggan denied having sex with B.K. and sneaking
out to meet B.K.
¶42.
After reviewing the testimony, we find that the evidence presented supported the jury's verdict of
statutory rape. Accepting as true the evidence which supports the verdict, we find the circuit court did not
abuse its discretion in denying a new trial. We conclude that allowing the verdict to stand does not
constitute an unconscionable injustice. Therefore, this Court will not disturb the jury's verdict on appeal.
¶43. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF
CONVICTION OF THREE COUNTS OF STATUTORY RAPE AND SENTENCE OF THREE
CONCURRENT THIRTY YEAR TERMS IN THE CUSTODY OF THE MISSISSIPPI
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DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO LAUDERDALE COUNTY.
KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., LEE, IRVING, MYERS AND
CHANDLER, JJ., CONCUR.
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