John Charles McGriggs v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-KA-01927-COA
JOHN CHARLES MCGRIGGS
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF 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:
MANDATE ISSUED:
APPELLEE
6/27/2006
HON. ISADORE W. PATRICK, JR.
WARREN COUNTY CIRCUIT COURT
W. DANIEL HINCHCLIFF
OFFICE OF THE ATTORNEY GENERAL
BY: DESHUN T. MARTIN
RICHARD SMITH
CRIMINAL - FELONY
CONVICTED OF RAPE AND SENTENCED TO
SERVE A TERM OF EIGHTEEN YEARS IN
THE CUSTODY OF THE MDOC UNDER THE
CONDITION OF MISSISSIPPI CODE
ANNOTATED SECTION 47-7-3(1)(b) (REV.
2004)1
AFFIRMED - 4/01/2008
BEFORE MYERS, P.J., GRIFFIS AND ROBERTS, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
John Charles McGriggs was convicted by a jury in the Circuit Court of Warren County of
rape and sentenced to serve a term of eighteen years in the custody of the Mississippi Department
of Corrections. McGriggs appeals, seeking a review of whether the trial court erred in (1) allowing
a responding police officer to testify regarding his opinion of whether the victim had been raped and
1
There is an obvious scrivener’s error in the sentencing order citing to Mississippi Code
Annotated section 47-7-3(6) which should have been cited as Mississippi Code Annotated section
47-7-3(1)(b) (Rev. 2004).
(2) admitting certain testimony of the emergency room physician. Finding no error in the decisions
of the trial court, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
On the evening of August 19, 2004, V.M.2 accepted a ride from McGriggs in Vicksburg,
Mississippi. According to V.M.’s testimony, upon her acceptance of the ride, McGriggs drove her
to a dead-end street and repeatedly beat and raped her. V.M. escaped from the vehicle, partially
nude, and flagged down an oncoming vehicle for help. The driver of the vehicle called 911 and
reported the situation. Police arrived on the scene and placed an alert for the vehicle McGriggs was
last seen driving. V.M. was transported to the emergency room at River Region Medical Center
where she was given a rape examination and provided treatment by Dr. Brian Hudson. McGriggs
was later apprehended and arrested for rape.
STANDARD OF REVIEW
¶3.
“The standard of review for either the admission or exclusion of evidence is abuse of
discretion.” Harrison v. McMillan, 828 So. 2d 756, 765 (¶27) (Miss. 2002). Even if this Court finds
an erroneous admission or exclusion of evidence, we will not reverse unless the error adversely
affects a substantial right of a party. Gibson v. Wright, 870 So. 2d 1250, 1258 (¶28) (Miss. Ct. App.
2004).
DISCUSSION
¶4.
We begin our discussion by noting that each of McGriggs’s complaints concerns a matter
in which no objection was lodged contemporaneously at trial. A contemporaneous objection must
be made when a witness gives objectionable testimony so that the trial judge has the opportunity to
correct the error and properly instruct the jury. Wells v. State, 698 So. 2d 497, 514 (Miss. 1997)
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This Court does not reveal the names of victims of sexual crimes.
2
(citing Ballenger v. State, 667 So. 2d 1242, 1272 (Miss. 1995)). Failure to raise a timely objection
constitutes waiver of the issue on appeal. Id. “[A] party who fails to make a contemporaneous
objection at trial must rely on plain error to raise the issue on appeal, because it is otherwise
procedurally barred.” Williams v. State, 794 So. 2d 181, 187 (¶23) (Miss. 2001) (citing Foster v.
State, 639 So. 2d 1263, 1288-89 (Miss. 1994)). Only an error so fundamental that it creates a
miscarriage of justice rises to the level of plain error. Dixon v. State, 953 So. 2d 1108, 1116 (¶22)
(Miss. 2007). Error is plain when it violates the substantive rights of a defendant. Id. Our
discussion now turns to whether the trial court’s admission of certain testimony constituted plain
error and violated McGriggs’s substantive rights.
I.
¶5.
WHETHER THE TRIAL COURT ERRED IN ALLOWING THE
OPINION TESTIMONY OF THE RESPONDING OFFICER.
Officer Kenneth Brown testified at trial to his involvement with the investigation of the rape
case. On redirect examination, Officer Brown was questioned whether or not he determined or
gathered knowledge that a rape took place. Officer Brown responded, “I had very much evidence,
in my opinion, that a rape did take place.” No objection was made following this statement, and the
redirect examination was concluded. Now, on appeal, McGriggs seeks reversal of his conviction
due to the admittance of Officer Brown’s statement, claiming it constituted plain error.
¶6.
Pursuant to Mississippi Rule of Evidence 701, testimony in the form of opinions or
inferences is admissible if “(a) rationally based upon the perception of the witness, (b) helpful to
the clear understanding of the testimony or the determination of a fact in issue, and (c) not based on
scientific, technical, or other specialized knowledge within the scope of Rule 702.” Our review of
the testimony reveals that Officer Brown, in fact, was not testifying that McGriggs raped the victim.
Rather, the officer was testifying that during his investigation, he concluded that a rape had taken
place. This opinion was based on his personal perception upon his arrival at the scene, where
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Officer Brown observed V.M. partially nude and battered with visible injuries to her face and body.
This type of statement, concerning the officer’s investigation and his findings falls entirely within
the acceptable scope of admissibility under Rule 701. Finding no violation of McGriggs’s
substantive rights, we hold that the trial court did not err in allowing the opinion testimony of the
responding officer. We find this issue to be without merit.
II.
¶7.
WHETHER THE TRIAL COURT ERRED IN ALLOWING THE
EXPERT TESTIMONY OF THE TREATING PHYSICIAN.
At trial the State commenced its case against McGriggs with the testimony of the treating
physician, Dr. Hudson, who was admitted as an expert. Dr. Hudson’s testimony served to describe
his observation and treatment of V.M. upon her arrival at the hospital. Dr. Hudson also testified that
during the course of treatment, V.M.’s blood alcohol level was taken and registered at 0.123.
McGriggs complains of Dr. Hudson’s testimony regarding his opinion of the cause of the injuries
V.M. sustained, as well as the level of impairment V.M. was experiencing as a result of her
intoxication.
¶8.
The following testimony was elicited by the State from Dr. Hudson regarding the cause of
V.M.’s injuries:
Q.
Doctor, based on your training and experience and to a reasonable degree of
medical certainty, are the injuries that you observed on [V.M.] consistent
with consensual sex?
A.
No.
Q.
Can you explain your answer, please?
A.
Well, obviously, as we have seen by the pictures and by the medical records,
she was beaten pretty significantly about the face, multiple abrasions on the
back and vaginal lacerations which would not be consistent with consensual
sex.
Q.
How difficult is it to damage a vagina?
4
BY THE DEFENSE ATTORNEY: Objection, Your Honor. That causes for
speculation. How difficult it is.
BY THE COURT: Well, with the training of this doctor, I’ll overrule that
objection.
A.
I’ll answer it this way. The vagina is not lacerated in consensual sex.
No objection was made following the doctor’s last answer, and questioning was concluded. On
appeal, McGriggs now complains that the trial court’s admission of Dr. Hudson’s testimony that
“[t]he vagina is not lacerated in consensual sex” was improper expert testimony and should have
been stricken.
¶9.
Because no contemporaneous objection was made to the testimony, we review McGriggs’s
claim that it constituted plain error. Williams, 794 So. 2d at 187 (¶23). An expert may base his
opinion testimony upon his own personal observation pursuant to Mississippi Rule of Evidence 703.
M.R.E. 703 cmt. Here, the doctor did not render an opinion that the victim had been raped; he
merely recounted the victim’s physical condition upon her arrival and while under his care, noting
that it was his opinion that the vagina is not lacerated during consensual sex. Dr. Hudson’s
testimony was based upon his own personal observation of V.M. and his experience as a physician.
The admissibility of expert testimony rests within the broad discretion of the trial court. Webb v.
Braswell, 930 So. 2d 387, 396-97 (¶15) (Miss. 2006). We cannot say that the trial court abused its
discretion in determining that the testimony was admissible.
¶10.
McGriggs additionally complains on appeal that Dr. Hudson was not qualified to offer the
expert opinion that a blood alcohol reading of 0.123 is mild intoxication and that it would not affect
a patient’s recall. When questioned by defense counsel, Dr. Hudson responded that in regard to
affecting a person’s recollection, a 0.123 level of intoxication is not an acute degree of intoxication.
Further, Dr. Hudson testified that he observed the victim and noted that she was completely alert and
5
oriented, despite her intoxication. McGriggs argues that Dr. Hudson’s testimony regarding levels
of intoxication was outside of his area of expertise, as only a toxicologist could testify whether
certain levels of intoxication could affect recall. This testimony at issue was elicited during crossexamination, and no objection was lodged at the time this testimony was presented. As stated above,
a contemporaneous objection must be made at the time of the testimony, or else the issue is waived
on appeal unless a substantial right of the defendant would be violated. Williams, 794 So. 2d at 187
(¶23).
¶11.
“Questions concerning the qualification of a person to testify as an expert are committed to
the sound discretion of the trial court and [an appellate court] does not reverse such decisions absent
a showing that such discretion has been abused and the witness is clearly not qualified.” Simmons
v. State, 722 So. 2d 666, 672-73 (¶44) (Miss. 1998) (citing Cooper v. State, 639 So. 2d 1320, 1325
(Miss. 1994)). “The test to determine whether a witness is qualified to give expert testimony or
opinion is whether the witness possesses peculiar knowledge or information regarding relevant
subject matter that is not possessed by the layman.” Id. (citing May v. State, 524 So. 2d 957, 963
(Miss. 1988)).
¶12.
Dr. Hudson was qualified by the trial court as an expert in the field of emergency medicine
and allowed to testify regarding V.M.’s level of intoxication, as well as his knowledge concerning
the impairment associated with intoxication. Before the trial qualified Dr. Hudson, he testified to
having completed a three-year residency in family medicine and becoming board certified in that
area. At the time of trial, Dr. Hudson had practiced emergency medicine at River Region Medical
Center for seven years. At the close of Dr. Hudson’s voir dire, the defense accepted him as an
expert. Based upon Dr. Hudson’s qualifications, as well as the defense’s acceptance of Dr. Hudson
as an expert in emergency medicine, we cannot find that the trial court erred in allowing the
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testimony regarding V.M.’s level of intoxication. Finding that the trial court did not err in admitting
the expert testimony of the treating physician, we hold that this issue is without merit.
III.
¶13.
WHETHER THE STATE OF MISSISSIPPI FAILED TO COMPLY WITH
THE MISSISSIPPI RULES OF APPELLATE PROCEDURE.
On a separate note, we find it necessary to express our severe dissatisfaction with the State’s
briefing on the issues presented in this appeal. This Court, as well as all courts in this state, expects
the State of Mississippi to advocate its positions in accordance with the Mississippi Rules of
Appellate Procedure.3 We believe the State has provided an insufficient brief, falling below the
expectation of this Court.
¶14.
For instance, Mississippi Rule of Appellate Procedure 28(a)(5) requires a summary of the
argument and provides the following guidelines: “The summary, suitably paragraphed, should be
a succinct, but accurate and clear, condensation of the argument actually made in the body of the
brief. It should not be a mere repetition of the headings under which the argument is arranged.” The
entire substance of the summary provided by the State only provides citations to Mississippi Rules
of Evidence 701 and 703 and block quotations of those rules in full. There is no discussion
regarding the applicability of the rules to the issues at hand. There are no supportive sentences
accompanying the rules. Nor is there any reference to the argument that lies ahead.
¶15.
Further, Mississippi Rule of Appellate Procedure 28(a)(6) prescribes the content of the brief.
The argument portion of the brief shall “contain the contentions of appellant [or appellee] with
respect to the issues presented, and the reasons for those contentions, with citations to the
authorities, statutes, and parts of the record relied on.” The State’s brief is devoid of any arguments
3
Mississippi Rule of Appellate Procedure 28 imposes requirements as to the form and
content of the parties’ submitted briefs. The content requirements for the appellee’s brief shall
conform to the requirements for the appellant’s brief, except the appellee is not mandatorily required
to provide a separate statement of the issues or of the case. M.R.A.P. Rule 28(b).
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or case law, whatsoever, in either issue addressed on appeal. Instead, a significant portion of the
State’s brief merely contains block quotations from more than four pages of the trial transcript
without any explanation to the relevance of such excerpts. While citation to portions of the record
is encouraged, the citations are not to be the sole support for State’s position in lieu of a substantive
argument, itself. There is no analysis connected with the block-quoted sections of the record, and
the State ends its “discussion” of each issue with the sentence, “This issue brought by the Appellant
is therefore lacking in merit.” Even more shocking to this Court is that upon our review of
McGriggs’s argument in Issue I, we realize that the section of the record excerpted by the State does
not correlate to any argument raised within the issue by McGriggs’s brief.
¶16.
We are unimpressed with the lack of effort expended by the State in formulating its brief.
We hope discussion of this matter serves as a reminder to members of the Bar of the importance of
meeting the standards promulgated by our supreme court in the Mississippi Rules of Appellate
Procedure.
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY OF
CONVICTION OF RAPE AND SENTENCE OF EIGHTEEN YEARS IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS UNDER THE CONDITION
OF MISSISSIPPI CODE ANNOTATED SECTION 47-7-3(1)(b) (REV. 2004) IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.
KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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