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Dewitt v. State

Court of Appeals of Mississippi

May 8, 2018


          DATE OF JUDGMENT: 10/17/2016.





          GRIFFIS, P.J.

         ¶1. Leslie Danielle Dewitt appeals her conviction for two counts of touching a child for lustful purposes pursuant to Mississippi Code Annotated section 97-5-23(2) (Rev. 1998). Dewitt argues that a new trial is warranted because of the service of an unqualified juror who withheld disqualifying information, the trial court incorrectly denied a motion to prevent the admission of a recorded conversation involving the appellant, and the trial court committed reversible error in denying the introduction of a lesser-included jury instruction. We find no error and affirm.


         ¶2. Leslie Danielle Dewitt, a female and once junior high and high school girls' basketball coach at Hancock High School, was convicted of two counts of touching a child for lustful purposes. The child, Bethany Foster, [1] also female, was a tenth-grade basketball player under Dewitt at Hancock.

         ¶3. Foster testified at trial that her and Dewitt's player-coach relationship, which began in junior high school and through basketball, developed over time during her high school years. Foster would routinely practice with Dewitt after school-hours and babysit her son at Dewitt's home. The two maintained a close relationship for years prior to trial.

         ¶4. Foster also testified that while in high school in December 2009, she was sixteen years old and spending the night at Dewitt's house with a teammate. Foster stated that after everyone else had gone to sleep, Dewitt committed sexual acts against her. Foster testified that Dewitt kissed Foster, placed her hand on Foster's vagina, and placed her fingers in Foster's vagina. Foster testified that the physical aspect of their relationship was repeated on more than twenty occasions from December 2009 until July 2010. It became routine. Foster also testified that during this time Dewitt placed her mouth on Foster's vagina and also used a sex toy on Foster's genitals. Dewitt denies that any sexual conduct ever occurred.

         ¶5. Foster did not tell anyone about the nature of the relationship. She testified that it was too embarrassing and that she was concerned what her friends and family would think given their religious background and the impact it could have on Dewitt. However, despite their best efforts, some semblance of a relationship between the two became evident to others, and after repeated failed attempts by Hancock school administrators to get Dewitt to distance herself from Foster, Dewitt was forced to resign. Foster and Dewitt remained in contact.

         ¶6. In January 2013, Foster returned home from college, struggling with depression and anxiety that she testified stemmed from her past relationship with Dewitt and the subsequent confusion it caused her. While home, Foster told her mother, Monique, about the sexual relationship between her and Dewitt for the first time.

         ¶7. Monique then took Foster to the police station to report the misconduct. Monique testified at trial that she later decided to confront Dewitt about the accusations and record the conversation on her cell phone. After letting the police know of her intentions, the police asked if she would be willing to use their recording device, instead of her cell phone, to record the conversation. Monique agreed. The police provided Monique with a recording device and followed her to meet Dewitt and observe the encounter from a distance. The police did not offer Monique any advice for techniques to use during the conversation or assistance in carrying out the act.

         ¶8. Monique confronted Dewitt in the parking lot of Pearl River High School where Dewitt had just finished coaching a basketball game. While Monique did not physically force Dewitt into her car, Monique threatened to "make a scene" if Dewitt did not agree to get in the car and speak with her. Dewitt and Monique got into Dewitt's car and Monique recorded the conversation unbeknownst to Dewitt. In the recording, Dewitt made allegedly incriminating statements without instruction regarding Miranda rights.[2] After the encounter, Monique returned the recording and recording device to the police. Later that night, Dewitt went to the police station on her own accord where she was informed of her Miranda rights before giving a statement. She was arrested about two months later in March 2013. Prior to trial, Dewitt filed a motion in limine to exclude the recording. The motion was denied, and the recording was played for the jury over Dewitt's objection.

         ¶9. After jury deliberations began, but before the jury reached a verdict, the circuit clerk discovered that one of the jurors, Simmons, was not a registered voter of Hancock County and had only lived in the county for two months prior to trial. As the trial judge stated, Simmons appeared in court because he was responding to a jury summons that was issued to his address in Hancock County. Although it is believed that the summons was meant for a prior occupant of the same address, Simmons received the summons, appeared in court, and went through all of the juror qualification process.

         ¶10. Before trial, the trial judge, the State, and the defense counsel all agreed that to the best of their knowledge the trial court properly impaneled and swore in the jury, a complete and proper voir dire was conducted, and all of the jurors were accepted in accordance with the competent juror qualifications under Mississippi Code Annotated section 13-5-1 (Rev. 2012). The trial judge states in the record that he "specifically ask[ed] the question, you must be either a qualified elector or resident freeholder of the [county] for more than one year." However, there is no evidence of this actual line of questioning of the jurors by the trial judge or the jurors' responses to the questions in the record.

         ¶11. While the information regarding how long Simmons had lived in the county was available to each side's counsel prior to trial on the juror's information card, his voter registration status was not. Dewitt alleges that Simmons withheld information that would have allowed her to strike him for cause. Again, according to the record, the parties at trial seem to agree that the jury was properly questioned during voir dire, but there is no record of the actual questioning or responses from the jurors. Upon hearing of the clerk's discovery, and before a verdict was reached, Dewitt quickly moved for a mistrial based on Mississippi Code Annotated section 13-5-1. However, according to the trial judge, Simmons did not intentionally do anything wrong. He responded to a summons issued to his address, was subjected to voir dire by both sides, and was accepted by each. Accordingly, the motion was denied.

         ¶12. The jury rendered the verdict of guilty of Counts III and IV for touching of a child for lustful purposes. Dewitt was subsequently sentenced to the maximums of fifteen years for Count III and fifteen years for Count IV to run consecutively for a total of thirty years in the custody of the Mississippi Department of Corrections. The sentence is set to be served day-to-day without the possibility of pardon, parole, early release, or suspension. Dewitt was further ordered to register as a sex offender. ANALYSIS

         I. Whether the trial court correctly denied Dewitt's Motion for New Trial despite the service of an unqualified juror.

         ¶13. Dewitt argues that Juror 3-26, Simmons, was an incompetent juror because he was not a registered voter in Hancock County at the time of trial and had only lived in Hancock County for two months prior to trial. She alleges that Simmons withheld this information which would have supported a strike for cause. Because Simmons served on the jury ...

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