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Hill v. State

Supreme Court of Mississippi

August 23, 2018

TERRY L. HILL a/k/a MS FLY a/k/a TERRY HILL a/k/a TERRY LAMONT HILL
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 08/03/2017

          OKTIBBEHA COUNTY CIRCUIT COURT HON. LEE SORRELS COLEMAN TRIAL JUDGE.

          TRIAL COURT ATTORNEYS: SCOTT WINSTON COLOM STEPHANIE L. MALLETTE

          ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: MOLLIE MARIE McMILLIN GEORGE T. HOLMES

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER DISTRICT ATTORNEY: SCOTT WINSTON COLOM

          BEFORE RANDOLPH, P.J., KING AND ISHEE, JJ.

          KING, JUSTICE.

         ¶1. Terry L. Hill was convicted in the Oktibbeha County Circuit Court of one count of robbery, two counts of kidnapping, and one count of sexual battery. Aggrieved, Hill raises one issue on appeal: whether the trial court erred in denying his attorney's motion to withdraw and Hill's motions for new counsel. Because of the defendant's actions prior to and at trial, and because of the substantial evidence against Hill, we affirm the decision of the trial court.

         FACTS

         ¶2. In the early morning hours of May 1, 2016, two men entered the house of Mississippi State University student Carly Stovall[1] in Starkville. The men sexually assaulted Carly and robbed Stephen, [2] her boyfriend at the time, of his iPhone. Law enforcement officers arrived on the scene while the two men were present. Corporal Christopher Jackson, an officer with the Starkville Police Department, testified that he received a call that a sexual assault was occurring. He proceeded to the area with Sergeant George Coleman. Corporal Jackson observed someone peeking through the windows of the house. He walked to the front door, and a man opened the door. Corporal Jackson identified the man as Hill. Hill greeted the officer and stated that he was a neighbor and that he was the one who had called 911. Corporal Jackson ordered Hill to put his hands up. Sergeant Coleman then entered the house and identified as Hill the man to whom he had observed Corporal Jackson speaking.[3] Shortly afterward, Stephen appeared in the doorway and said, "get him." Carly then appeared and started screaming, "that's the guy who raped me."

         ¶3. Hill ran out the door, and the officers chased him. In the meantime, Stephen and Carly went to the hospital. There, Stephen informed the policemen that he did not have his iPhone. Stephen used a police officer's phone to log into the "Find my iPhone" application, a GPS tracking system, which enabled the police officers to track the phone. Officer Andrew Jenkins, a patrol officer with the Starkville Police Department, stated that on Sunday, May 1, 2016, law enforcement officers tracked Hill using Stephen's iPhone and informed him that Hill was on the MSU campus. Officer Jenkins went to the indicated area. While searching, a sergeant with the MSU police department noticed an open door that led to a crawl space under a house and wet footprints just inside the door. The sergeant called for a K-9 unit. At approximately 6:40 a.m., Officer Jenkins followed the K-9 unit under the house and found Hill in the left corner.[4] Stephen's iPhone was found on Hill's person.

         ¶4. The Oktibbeha County Hospital staff performed a rape kit on Carly. Kathryn Rogers, a forensic deoxyribonucleic acid (DNA) analyst with Scales Biological Laboratory, testified that the vulvar swabs contained a mixed DNA profile consisting of at least two individuals and included sperm cells. Hill could not be excluded as a contributor; however, 99.99 percent of the general world population would be excluded from the mixture. The vaginal swabs contained a DNA profile from one major contributor which matched Hill's buccal swabs. Rogers testified that particular frequency is less than one in 999 trillion. In summary, Hill could not be excluded as a contributor to the sperm cells on the vulvar swab and he was a match to the major contributor of the mixture found in the sperm fraction of the vaginal swabs.

         PROCEDURAL HISTORY

         ¶5. The trial court appointed public defender Stephanie Mallette to represent Hill. Hill was indicted on six counts: Count I, Robbery; Count II, Kidnapping; Count III, Kidnapping; Count IV, Aggravated Assault; Count V, Sexual Battery; and Count VI, Rape. Hill pleaded not guilty to all counts.

         ¶6. On July 27, 2016, Mallette filed a Motion to Withdraw, stating that Hill had advised her that he was not indigent and that he no longer desired Mallette to represent him. On January 5, 2017, at a hearing on the matter, Hill requested that the court appoint a different attorney to represent him, stating:

Because me and my counselor are not compromised in our - my - in this case. We can't agree on anything. I have filed many letters. I never get a response, and I just feel as though she's not qualified for this case.

         The trial court responded that it would not grant the appointment of a new attorney but instructed Mallette to respond to any letters that she received in the future. Mallette stated that she had responded to every letter that Hill had written to her with the exception of the most recent one, because she had received the letter during the Christmas break.

         ¶7. On January 17, 2017, Hill filed a "Motion for Appointment of New Counsel." Hill stated that Mallette had failed to investigate properly "numerous" avenues of exculpatory evidence and mitigating facts, including street video surveillance, police body-camera footage, cellphone data from the victim's phone, illegal drug and alcohol usage by the victims, and evidence that the police knew of high drug usage around the Bin 612 in Starkville. Hill alleged that Mallette's representation fell well below the standard of competent counsel.

         ¶8. Hill's trial was scheduled for July 24, 2017; however, the State did not elect to call Hill's case for trial on that date. Hill's codefendant Jerry Talley's trial had been scheduled for July 31, 2017. Subsequent to that time, counsel for Talley had been allowed to withdraw from the case, rendering Talley's trial impossible on July 31. The district attorney then called Mallette and informed her that the State was ready to proceed against Hill on July 31. Mallette indicated that she was prepared for trial.

         ¶9. On July 27, 2017, at a hearing before the trial court, Mallette stated that Hill again had demanded that the court appoint him a different attorney. The trial court requested that Hill address the court from the podium. Hill declined and then stated, "It's not a problem. We [are] just having issues and I feel as though she's going to represent me. I want her to be my attorney." The trial court then directly asked Hill if he wanted Mallette to be his attorney, and Hill responded that he did. The trial court asked Mallette if she was prepared to begin trial, and Mallette again represented that she was prepared for trial at that point.

         ¶10. On July 31, 2017, the State called Hill's case for trial. Mallette requested a continuance, arguing that Hill had identified Talley in exchange for the State's consideration of Hill's cooperation. Mallette contended that the State did not give Hill's cooperation any consideration and that the State had changed its agreement to try Talley before Hill. It was undisputed that the State and the defense never had any written agreement. The State responded that no promises had been made to Hill and that the State had considered the fact that Hill had identified Talley but balanced that consideration with the allegations against Hill. The State then decided that Hill did not deserve much consideration. The State also argued that Hill had destroyed his own chances of cooperating with the State when Hill stated under oath that he had no involvement in the case. The State alleged that Hill had made himself an unreliable and useless witness by under oath denying any involvement in the incident. Therefore, the State decided that, because of Hill's habitual-offender status, any plea offer the State would be prepared to make would involve more time served than his counsel reasonably could recommend that Hill accept.

         ¶11. Mallette responded that the State now had made her a witness in the case because the State had alleged that no promise had been made to Hill that he would receive consideration by the Starkville Police Department. Mallette alleged that the State's contention was not true and that she had been a party to the conversation in which Hill was promised consideration if he cooperated. The trial court denied Mallette's motion for continuance, reasoning that Mallette had announced on two separate occasions that she was prepared for trial; the trial court found, therefore, trial at that point to have resulted in no prejudice to Hill. In addition, the trial court stated that it had no authority to force the State to try Talley's case first. Mallette then requested that the trial court allow her to withdraw because she was a possible witness in the case. Mallette argued that, if the State was going to deny that a promise had been made to Mallette, then Hill would ...


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