June 23, 2015
WILLIAM HENDERSON A/K/A WILLIAM E. HENDERSON A/K/A WILLIAM EARL HENDERSON, APPELLANT
STATE OF MISSISSIPPI, APPELLEE
OF JUDGMENT: 04/09/2013.
FROM WHICH APPEALED: YAZOO COUNTY CIRCUIT COURT. TRIAL JUDGE:
HON. JANNIE M. LEWIS. TRIAL COURT DISPOSITION: CONVICTED OF
STATUTORY RAPE AND SENTENCED AS A HABITUAL OFFENDER TO THIRTY
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITHOUT THE BENEFIT OF PAROLE OR SUSPENSION OF
APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: JUSTIN TAYLOR
APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: MELANIE DOTSON
IRVING, P.J., BARNES AND FAIR, JJ. LEE, C.J., IRVING AND
GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND
JAMES, JJ., CONCUR.
William Henderson was convicted of the statutory rape of his
thirteen-year-old cousin, Abby. She testified that
Henderson had repeatedly displayed a pistol to intimidate her
into having sex with him. After their final encounter was
interrupted, Henderson literally jumped out the window of the
victim's bedroom, leaving behind some of his clothes and
a condom wrapper bearing his fingerprint. On appeal, he
raises four varied issues. We find no merit to any of them,
and so we affirm Henderson's conviction and sentence.
Admission of the Letter
The trial court admitted into evidence a handwritten letter
Henderson to a jailmate to be delivered to a friend Henderson
had visited the day of his final sexual encounter with Abby.
In the letter, Henderson asked the friend to testify in his
defense and corroborate his account that he had left the
friend's residence with a girlfriend. It closed by asking
the friend not to say anything about a gun. The letter was
delivered, but the friend's mother found it; and it
ultimately made its way to the authorities. It was offered
into evidence by the prosecution and was admitted into
evidence over Henderson's objection. The friend testified
at trial and contradicted the narrative of the letter in
A trial court's decision to admit or exclude evidence is
reviewed for abuse of discretion. Gillett v. State,
56 So.3d 469, 494 (¶ 61) (Miss. 2010).
The cellmate testified that Henderson gave him a letter and
that he delivered it to the friend. The friend testified that
the letter was the one delivered to him by the cellmate on
Henderson's behalf. Henderson contends that the letter
was not properly authenticated because the handwriting was
never confirmed to be his. Henderson's position is, it
seems, that Mississippi Rule of Evidence 901(b)(2) is the
only way a handwritten note could have been authenticated.
Rule 901(b)(2) does permit authentication of a handwriting by
nonexpert opinion testimony. But Rule 901(b) makes it clear
that 901(b)(2) is an " example" which is provided
" [b]y way of illustration only, and not by way of
Rule 901(a) outlines the relevant standard for admission:
" The requirement of authentication or identification as
a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in
question is what its proponent claims." At trial, the
prosecution never claimed to authenticate the letter by way
of handwriting, contending instead that it was authenticated
by the chain of custody and by its subject matter. Henderson
waves this away by simply asserting, without citing any
relevant authority and without further argument, that "
[i]t is not enough that Henderson is alleged to have given
this letter to someone in order to have it delivered"
and that " it is immaterial that the letter itself
contained a desire for [the friend] to testify in
[T]here is a presumption that the judgment of the trial court
is correct and the burden is on the Appellant to demonstrate
some reversible error to [the appellate court]."
Birkhead v. State, 57 So.3d 1223, 1231 (¶ 28)
(Miss. 2011). Accordingly, Mississippi Rule of Appellate
Procedure 28(a)(6) requires that the appellant's argument
" contain the contentions of appellant 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." This rule " does not simply
require a party to mention authority; the authority must be
used to develop the argument in a meaningful way."
Archer v. State, 118 So.3d 612, 621 (¶ 29)
(Miss. Ct.App. 2012) (citation omitted).
Raising an issue on appeal requires more than the
announcement of a position, and the failure to affirmatively
demonstrate error waives the issue for our consideration.
Jefferson v. State, 138 So.3d 263, 265 (¶ 9)
(Miss. Ct.App. 2014).
The Sleepy Juror
Henderson next argues that the trial court erred in not sua
sponte dismissing a juror Henderson alleges was sleeping
during the trial. Twice during the trial, the judge
interrupted the proceedings
to check on one of the jurors. The first time, she
THE COURT: [Juror], you've got to stay with us.
JUROR: Yes, ma'am.
THE COURT: Keep your eyes open so I know you're
the prosecutor asked for a recess after noting that the juror
was holding his head in his hand. The prosecutor expressed
concern that the juror may have been asleep. After the
recess, the judge was again concerned:
THE COURT: [Juror], still listening[?]
THE COURT: Keep your eyes open. Keep your eyes open for me.
adjourning for the day, the judge directed these words to the
juror in question: " [Juror,] if you go home now, go to
bed. I bet you'll do better tomorrow."
Henderson never objected, interjected, or otherwise expressed
any concern about the juror in question during the trial.
Nonetheless, on appeal he claims that the juror was asleep
during critical parts of the case, and he contends that the
trial court had an obligation to dismiss the juror sua
We find no merit to this argument. The record reflects only
suspicion that the juror was sleeping -- and at two or three
discrete points in time, not for extended periods, as
Henderson alleges. To the extent the record is unclear about
what actually occurred, it is because Henderson did not raise
the issue before the trial court; had he done so, the court
could have inquired further, made express findings of fact,
and taken action to prevent any error before it occurred.
Without a timely request from Henderson, the trial court was
under no obligation to remove the juror suspected of
sleeping. Norris v. State, 490 So.2d 839, 846 (Miss.
1986). We find no merit to these belated complaints.
Next, Henderson contends that the trial court erroneously
admitted into evidence an audio recording of a police
interview with the victim, Abby. The recording was offered as
a prior consistent statement under Mississippi Rule of
Evidence 801(d)(1)(B) to rebut the repeated claims of
Henderson's attorney that Abby had recently fabricated
some of the details of her account -- primarily that
Henderson used a gun to intimidate her into having sex with
On appeal Henderson ignores this basis for admitting the
recording and instead argues that Abby's statement could
not be admitted under the tender-years exception to the rule
against hearsay. See M.R.E. 803(25). This is a
curious contention since, so far as we can see, no one had
previously suggested that Abby was of tender years. A child
is presumed to be of tender years if she is younger than
twelve years of age, Veasley v. State, 735 So.2d
432, 433 (¶ 1) (Miss. 1999), but Abby was fourteen when
she was interviewed. Neither the State nor the trial court
ever suggested Rule 803(25) was the basis for admitting the
Henderson otherwise only offers the bald assertion that
" [n]o other hearsay exception applies." Even if
that were true, Rule 801(d) explicitly defines prior
consistent statements as nonhearsay, and since such
statements are not hearsay, no exception to the rule against
hearsay is required. Henderson has failed to show
any error in the admission of the interview.
Sentencing as a Habitual Offender
Finally, Henderson contends that the trial court did not have
before it sufficient evidence to sentence him as an habitual
offender, because " there was absolutely no evidence
admitted during the sentencing hearing." Henderson does
not acknowledge in his brief that there is extensive
documentation of his prior offenses in the record -- the
documents were just accepted into evidence prior to the
When the same issue was squarely presented to the Mississippi
Supreme Court last year, it found the admission of the
evidence prior to the sentencing hearing to be irregular, but
not reversible error. Conner v. State, 138 So.3d
143, 150-52 (¶ ¶ 17-26) (Miss. 2014). It bears
mentioning that although Henderson does not cite
Conner or explain how its holding relates to his
arguments, Henderson's appellate counsel was counsel of
record in Conner, and the decision in
Conner was handed down and the mandate issued
several months before Henderson's brief was submitted.
Various documents establishing that Henderson is a habitual
offender were made a part of the record, without objection,
during the pretrial hearing to amend Henderson's
indictment to charge him as a habitual offender. During the
sentencing hearing, the prosecutor asked the trial court to
take judicial notice of the exhibits previously admitted. Not
only did this not garner an objection from Henderson, but his
attorney conceded that Henderson was a habitual offender; she
stated that " the convictions speak for
themselves." Henderson only contested the timing of the
order amending the indictment. In his brief on appeal,
Henderson ignores all of this, repeatedly contending that the
evidence had to be admitted during the sentencing
hearing. This argument was rejected in Conner. See
As in Conner , this issue is procedurally barred
because it was not raised in the trial court. Id. at
150 (¶ 19). Furthermore, it is plain from the transcript
that the trial judge examined the documents at the sentencing
hearing, and they were made part of the record. Id.
at 152 (¶ 25). This issue is without merit.
THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY OF
CONVICTION OF STATUTORY RAPE AND SENTENCE AS A HABITUAL
OFFENDER OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITHOUT THE BENEFIT OF PAROLE OR
SUSPENSION OF SENTENCE, IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO YAZOO COUNTY.
C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS,
CARLTON, MAXWELL AND JAMES, JJ., CONCUR.
This Court uses fictitious names to protect
the identity of minor victims of sexual abuse.
Henderson was also tried for two counts of
sexual battery, but the jury could not reach a verdict on
The judge referred to the juror by his
surname, but there were two jurors with that name. From the
context it appears to have been the same individual in both