Muriel Penny v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-00544-COA
MURIEL PENNY
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
03/11/2008
HON. ANDREW C. BAKER
TATE COUNTY CIRCUIT COURT
IMHOTEP ALKEBU-LAN
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED
AFFIRMED – 04/28/2009
BEFORE LEE, P.J., IRVING AND ISHEE, JJ.
IRVING, J., FOR THE COURT:
¶1.
Muriel Penny was convicted in the Tate County Circuit Court of fondling a six-year-
old girl. The trial court sentenced him to fifteen years, with nine years suspended, in the
custody of the Mississippi Department of Corrections. Penny appealed his conviction, and
in December 2006, this Court affirmed the trial court’s judgment. Penny v. State, 960 So.
2d 533, 541 (¶31) (Miss. Ct. App. 2006). In December 2007, Penny filed an application with
the Mississippi Supreme Court for leave to file a post-conviction relief motion in the trial
court. A panel of supreme court justices granted the motion, finding that Penny’s newlydiscovered-evidence argument warranted review. Therefore, the supreme court ordered that
an evidentiary hearing be held.
¶2.
On February 1, 2008, the hearing was held in the Tate County Circuit Court, and
Penny’s wife, Jearlene, provided the only testimony. On March 12, 2008, the trial court
denied Penny’s motion. Penny appeals and asserts: (1) that the trial court abused its
discretion in refusing to allow a witness to testify at the evidentiary hearing, (2) that the trial
court erred in finding that he failed to produce documentation to support his allegations, and
(3) that the trial court erred in excluding as hearsay the evidence that he offered.
¶3.
Finding no reversible error, we affirm.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶4.
In his post-conviction relief motion before the trial court, Penny stated that Sydatrius
Futrell (Shay) was the only witness that connected him to the crime. He contended that
Lakesha Porter was a newly discovered witness who would contradict Shay’s testimony in
a material way which, in his opinion, would have altered the outcome of his trial had she
been discovered prior to trial.
¶5.
In denying Penny’s motion, the trial court stated the following:
The proof presented at the hearing consisted totally of hearsay. The “new
evidence” which Penny alleges consists of certain information which would
hurt the credibility of the victim’s testimony at trial. One such bit of evidence
was that the child in an interview with a child psychologist said that she was
watching a particular children’s show which supposedly only comes on cable
television and only at certain times. [Jearlene] testified at the hearing that the
home where an event supposedly took place did not have cable television and
the show was not on at the time of a specific incident. [Jearlene] presented no
documentation. Also, [Jearlene] testified that [Shay] stated that [Shay] went
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to a specific football game on the night of one of the incidents and that
[Jearlene] now has proof that the particular football game did not occur on that
night. Again, [Jearlene] produced no documentation. [Jearlene] also testified
that a particular witness, Connie Blair, who testified at trial, now says that
[Jane]1 was not at the home where the crime allegedly occurred, but was at the
Blair home at the time a specific incident occurred. Blair did not testify at the
hearing. All of this evidence was available at the time of the trial. The
witnesses actually testified at trial and could have testified to this evidence at
the time of the trial. Penny was convicted of a lesser charge which in the
indictment occurred over a span of time. Penny was acquitted of the count
which occurred on a specific date.
The only evidence that could remotely be considered new evidence was the
hearsay testimony that [Shay], who testified at trial that she saw something
supposedly, told [Porter] that [Shay] was only told of the event by [Jane] and
not that [Shay] actually witnessed it.2 [Shay], who did not testify at the
hearing, but who testified at trial, was subject to cross-examination at the trial
and was thoroughly questioned regarding whether she was told or whether she
witnessed the event. The only evidence of this at this point is an affidavit of
[Porter] who had a telephone conversation with [Shay]. Most of the evidence
presented at trial was purely hearsay. Only one of the persons who submitted
affidavits in support of the petition actually testified and her testimony was
purely impeachment evidence.
(Footnotes added).
¶6.
As stated, Jearlene was the only witness to testify at the evidentiary hearing that was
held pursuant to the supreme court’s mandate. In this appeal, Penny first asserts that the trial
court erred in refusing to allow Porter to testify at the evidentiary hearing, arguing that
1
We have changed the name of the child to protect her identity.
2
The trial judge’s summary of Jearlene’s testimony concerning what Shay allegedly
told Porter is not quite accurate. Jearlene’s testimony at the evidentiary hearing was that
Shay told Porter that Shay did not witness the incident about which Shay testified but that
it was told to her by Jane. This was an incident where Shay and Jearlene’s grandson,
Erlando, allegedly had observed Penny with his hand on top of Jane’s hand that was placed
on Penny’s genitals on top of his clothing. On the other hand, Porter’s affidavit says that
Shay told Porter about an incident where Jane’s grandfather (Penny) had touched Jane
inappropriately, rather than an incident where Shay and Erlando had observed Penny’s hand
on top of Jane’s hand.
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Porter’s testimony would have established that the “State’s only witness linking [him] to the
alleged abuse lied under oath.” We note at the outset that the record does not bear out
Penny’s assertion. The transcript of the evidentiary hearing reveals that Porter was present
at the hearing; however, our review of the transcript does not reveal any instance where
either Penny or Porter expressed an interest in having Porter testify and was denied the
opportunity to do so.
¶7.
Porter’s cousin, Shay, testified at Penny’s trial but did not testify at the evidentiary
hearing. However, Jearlene testified as to her recollection of Shay’s trial testimony. The
following is a summary of Jearlene’s account of Shay’s trial testimony:
On the day that the abuse is alleged to have occurred, Shay, Jane, and Erlando
were at the Penny residence watching videos and playing video games. Jane
entered Erlando’s bedroom where Shay and Erlando were and instructed them
to smell her hand; Jane then requested that they follow her. Jane led them to
Penny’s bedroom where Jane went over to Penny and “put her hand on his
private area.” Shay and Erlando went downstairs for a brief period. Upon
their return, they observed that Penny had his hand on top of Jane’s hand
which was placed on Penny’s genitals on top of his clothing.
Sometime after Penny’s trial, Porter provided an affidavit wherein she stated that Shay had
admitted to her, during a telephone conversation that occurred two weeks after the trial, that
she had been “under pressure to tell a lie.” Porter claims that she did not learn of the
possibility that Shay’s trial testimony may not have been truthful until after Penny had been
convicted. Porter’s affidavit reads as follows:
Shay is my cousin and we live down the street from the Penny house and the
Thomas house, Shay’s grandmother. About two weeks after they went to
court, I was talking to Shay on the phone. I asked her to tell me the truth, what
did you really see or did you see anything[?] She said, “really . . . to tell you
the truth, I was under pressure to tell a lie.” I asked her, why? She said, “to
help [Jane] and beside[s] they told us what to say.” I said, “Well, Shay, you
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are known for lying, but why did you have to lie?” She said, “I don’t know.”
I asked [Shay] if [Jane] told her to lie for her. She said[,] “no.” I asked [Shay]
if [Jane] told [Shay] that [Jane’s] grandfather touched her in a nasty way.
[Shay] said[,] “yeah, but I know [Jane] was lying because he was outside.” I
said, “what really happened?” Shay said, “[Jane] told me he touched her but
[Shay] didn’t really see it, so [Shay] can’t say it is true or not.” I told her I just
wanted to know what really happened. Shay said[,] “Please don’t tell my
mother that I lied, okay.” I told her “okay” and that was the end of the
conversation.
¶8.
We disagree with Penny’s contention that Porter provides any new evidence that
would have materially altered the outcome of the trial had it been discovered prior to trial.
In her affidavit, Porter describes what appears to be an entirely different incident than the one
about which Shay testified at trial, an incident that was not the subject of Penny’s indictment.
Accordingly, this Court agrees with the trial judge that, as shown by the affidavits and
testimony presented at the evidentiary hearing, all of the evidence that Penny characterizes
as newly discovered evidence is nothing more than hearsay and impeachment evidence.
¶9.
Next, Penny argues that the trial court erred in finding that he did not produce any
documentation to support his allegations at the evidentiary hearing. At the hearing, Jearlene
testified that Jane testified during the trial that a particular program was on television at the
time that the incident allegedly occurred. Jearlene also informed the court that she had a
television schedule that, according to her, proved that Jane’s testimony regarding when the
incident occurred was not credible. The record does not indicate any effort on the part of
either Jearlene or Penny to introduce the schedule or to have the trial court review it, but even
if they had made the effort, it would not have mattered because it, at best, was nothing more
than impeachment evidence.
While the trial judge stated that Penny produced no
documentation to support his allegations, it is clear that what the trial judge meant was no
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documentation regarding newly discovered evidence, since the purpose of the hearing was
to determine if any new evidence existed. Therefore, the trial court was correct in finding
that Penny produced no documentation because the television schedule did not qualify as
newly discovered evidence. In Brewer v. State, 819 So. 2d 1169, 1172 (¶10) (Miss. 2002)
(quoting Ormond v. State, 599 So. 2d 951, 962 (Miss. 1992)), the Mississippi Supreme Court
held that:
Newly discovered evidence warrants a new trial if the evidence will probably
produce a different result or verdict; further, the proponent must show that the
evidence “has been discovered since the trial, that it could not have been
discovered before the trial by the exercise of due diligence, that it is material
to the issue, and that it is not merely cumulative, or impeaching.”
(Emphasis added). Jearlene testified that the printouts were from 2004; thus, we find that
they were available in July 2005, when Penny went to trial. There is no merit to this issue.
¶10.
In his final issue, Penny asserts that the trial judge erred in concluding that “[t]he
proof presented at the hearing consisted totally of hearsay.” As he argued in his first issue,
Penny again argues that the trial judge erred in refusing to allow Porter to testify at the
evidentiary hearing. We decline to address this issue further, because we have already
concluded that the trial court did not refuse to allow her to testify and because Penny asserts
no new arguments to support this issue.
¶11. THE JUDGMENT OF THE TATE COUNTY CIRCUIT COURT DENYING
THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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