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Sullivan v. State

Court of Appeals of Mississippi

June 11, 2019

DRESHAWN SULLIVAN A/K/A DRESHAWN M. SULLIVAN APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 10/19/2017

          FORREST COUNTY CIRCUIT COURT HON. JON MARK WEATHERS TRIAL JUDGE:

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES

          ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY T. GERBER KAYLYN HAVRILLA McCLINTON JASON L. DAVIS

          DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL

          BEFORE CARLTON, P.J., TINDELL AND McDONALD, JJ.

          McDONALD, J.

         ¶1. Dreshawn Sullivan appeals his Forest County Circuit Court convictions of "breaking and entering" (i.e. burglary), attempted kidnapping, and felony child abuse. Having considered both his and his counsel's arguments, those of the State, and relevant case law, we affirm.

         FACTS

         ¶2. In the early morning hours of March 16, 2016, sixteen-year-old R.L.[1] was brutally assaulted in her home by an unknown male who came in through her bedroom window. Initially, he told her not to talk and demanded that she leave with him. When she refused, he punched her in the face and hit her in the head with a metal object. She fell to the floor, bleeding and unconscious.

         ¶3. On the evening of the incident, R.L.'s sister, J.L., brother, mother, stepfather and J.L.'s boyfriend, Jonathan Hogen, were in the home. J.L. and Hogen slept in J.L.'s bedroom. J.L. got up in the middle of the night to go to the bathroom and heard her sister moaning. J.L. found R.L. in her bedroom, bloodied and unconscious. J.L. woke her mother and stepfather, who, along with J.L., took R.L. to the hospital. Hogen left the home soon after they did and later testified that he went straight home.

         ¶4. R.L. was severely injured. She underwent brain surgery and was in a medically induced coma for three weeks. Her surgeon testified that her skull fracture was so severe that her brain was literally protruding from her skull and exposed to the air. Because of brain swelling, he had to remove a portion of the bone that he later reconstructed. Remarkably, when she awoke, she remembered all of the events and could describe her assailant. After hospitalization in Hattiesburg, she went to Blair E. Batson Hospital in Jackson for a lengthy rehab period.

         ¶5. For several weeks, the investigation stalled. The rape kit revealed no semen or sperm. Nothing materialized from physical items taken from the room and examined for trace DNA evidence. Then police received a call from R.L.'s friend, Brianna Pruitt, who had obtained information on the case. She told them that her cousin, Alexia Jordan, had heard from Xiara Thompson that Dreshawn Sullivan was at a party saying that he was the person who had assaulted R.L. Police arranged a photo lineup with R.L. She identified Sullivan as her assailant.

         ¶6. On June 5, 2015, Sullivan was arrested and charged with aggravated assault. Police detectives testified at trial that Sullivan waived his Miranda rights[2] and stated that he had been drinking on Dabbs Street the night of the incident. He also said that he walked home on a route that, according to detectives, took him close to R.L.'s home. When Sullivan said that he did not strike R.L. in the head with a hammer, the detectives pointed out that they had not revealed any of the details of the assault. Sullivan stopped talking and, according to investigators, then asked for a lawyer.

         ¶7. Sullivan was ultimately indicted, and charged with breaking and entering, attempted kidnapping and felony child abuse. A jury trial was conducted during which prosecutors were allowed to present evidence of another charge against Sullivan involving a girl named K.L. and evidence of contacts he had with a girl named R.M.

         ¶8. K.L., age fourteen, testified that during the early morning hours of May 18, 2015, she awoke when she felt herself being pulled out of her bedroom window. Her bed was directly under the window and a man had opened it, reached down, and started lifting her up and out. She awoke and struggled. When she tried to scream, he forced a towel into her mouth, cutting her lip. He had her halfway out of the window when she broke free and ran down the hall where she met her mother. Although the man wore a mask, K.L. remembered his eyes.

         ¶9. A few days later, K.L.'s mother, Kizzy Thomas, encountered a man she thought was named "Mr. Hattiesburg"; his real name is Derrian Moye. Moye told Thomas that he was a friend of Sullivan's mother. Ultimately, he made veiled threats to Thomas about pursuing K.L.'s assault case. Thomas reported this incident to the police, who arrested and charged Moye with witness tampering.

         ¶10. Thomas learned from children in the neighborhood who recognized "Mr. Hattiesburg" that he hung out with someone named "Mad Five." From a cousin, she learned that "Mad Five" was Sullivan. Thomas found Mad Five's Facebook page and showed it to K.L. K.L. identified Sullivan as the man who tried to kidnap her. K.L. also testified that she had seen Sullivan on two prior occasions; once at her cousin's birthday party and another time just three days before her attack. During her second encounter, Sullivan walked by her home, saw her on her porch, and asked if he could come in. She especially recalled his eyes, "spooky" and staring at her, which enabled her to identify Sullivan as her attacker from his Facebook page and a police photo lineup.

         ¶11. R.M., yet another child in the area, had contacts with Sullivan on Facebook. He had communicated with her through his account styled "Mad Five Sullivan." At one point, he texted R.M. at 11 p.m. and asked her which window led to her bedroom. He asked to come see her but she declined. He asked again about the location of her window. These texts and Facebook exchanges were entered into evidence. Sullivan did not deny his contacts with R.M. or K.L., but he denied that he tried to kidnap K.L.

         ¶12. Prior to trial, Sullivan challenged the admissibility of K.L.'s and R.M.'s testimonies through a motion in limine. After hearing argument, the trial court allowed their testimonies into evidence based upon the State's assertions that it was being offered to prove the identity of R.L.'s assailant, the common scheme that Sullivan used, and his intent. Sullivan also filed a motion in limine to exclude Pruitt's testimony that led to the photo lineup, which was granted. But Sullivan's counsel withdrew the objection during the trial.

         ¶13. At trial, Sullivan testified in his defense and denied assaulting R.L. On the night of the incident he said he was hanging out with his friends-other members of the Almighty Vice Lord Nation-drinking and selling crack until 3:30 a.m. He said he was walking home when he spotted Hogen, who gave him a ride. Hogen had testified earlier and denied this allegation. Sullivan admitted the Facebook exchanges with R.M. and said that he talked to K.L. one day while walking his dog. He also admitted to speaking to his "spiritual advisor" and "community leader," Moye, about the allegations. According to Sullivan, Moye said he would look into it.

         ¶14. The jury convicted Sullivan on all three counts. He was sentenced to twenty-five years for burglary, to thirty years for attempted kidnapping, and to life for felony child abuse. Sullivan appeals these convictions.

         ¶15. Sullivan's appointed appellate counsel raises three issues:

I. Whether the circuit court abused its discretion in admitting evidence of Sullivan's other bad acts.
II. Whether the circuit court erred in allowing hearsay testimony of Brianna Pruitt.
III. Whether there was sufficient evidence to sustain Sullivan's attempted kidnapping conviction or, in the alternative, whether the jury's verdict was against the overwhelming weight of the evidence.

         Sullivan subsequently filed a pro se brief and raised additional issues that we have rephrased for clarity:

IV. Whether Sullivan's constitutional right to a speedy trial was violated.
V. Whether the weight of the evidence supported the jury's verdicts for burglary and child abuse.
VI. Whether the prosecutor erred by charging Sullivan with burglary of a dwelling, attempted kidnapping, and felony child abuse.
VII. Whether the trial court erred in admitting Sullivan's post-Miranda statement.
VIII. Whether the trial court erred by allowing Detective Smith to testify.
IX. Whether the trial court erred by refusing proposed jury instructions D-2 and D-8.
X. Whether the trial judge engaged in judicial misconduct.
XI. Whether the prosecutor engaged in prosecutorial misconduct.
XII. Whether Sullivan received ineffective assistance of counsel.

         DISCUSSION

         I. Whether the circuit court abused its discretion in admitting evidence of Sullivan's other bad acts.

         ¶16. Sullivan challenges the admissibility of K.L.'s and R.M.'s testimonies as impermissible evidence of other bad acts. The appellate court reviews the admission of evidence under the abuse-of-discretion standard and evidentiary rulings are affirmed unless they affect a substantial right of the complaining party. Boggs v. State, 188 So.3d 515, 519 (¶9) (Miss. 2016).

         ¶17. Mississippi Rule of Evidence 404(b) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

         ¶18. Thus, evidence of other acts or crimes cannot be admitted to show that a defendant acted in conformity with his or her character. For example, in Robinson v. State, 35 So.3d 501, 506-507 (¶16) (Miss. 2010), evidence that a defendant beat and threatened to kill a prior girlfriend was admitted in that defendant's trial for murdering his current girlfriend because it was entered merely to show the defendant's violent nature. The Mississippi Supreme Court found this to be reversible error. Id. at 507 (¶18).

         ¶19. However, evidence of other acts can be admissible if the prosecutor clearly articulates the alternative purpose for the evidence, and shows that a Rule 404(b) exception is met. Strickland v. State, 220 So.3d 1027, 1033-34 (¶¶15-16) (Miss. Ct. App. 2016). The probative value of such evidence must not be substantially outweighed by the prejudicial effect. Leedom v. State, 796 So.2d 1010, 1015 (¶15) (Miss. 2001); M.R.E. 403. If such evidence has been admitted under Rule 404(b), the trial court must give an instruction to the jury explaining the limited purposes for which that evidence may be considered. Derouen v. State, 994 So.2d 748, 756 (¶20) (Miss. 2008). There is no abuse of discretion if the circuit court considered the evidence's admissibility under Rule 404(b) and then filtered it through Rule 403's balancing test. Parks v. State, 228 So.3d 853, 869 (¶63) (Miss. Ct. App. 2017).

         A. Testimony of K.L and R.M.

         ¶20. Evidence of a different offense with a different victim may be considered by the jury if properly admitted under Rule 404(b), weighed against any prejudice to the defendant through Rule 403, and accompanied by an appropriately drafted limiting or cautionary instruction. Green v. State, 89 So.3d 543, 549 (¶15) (Miss. 2012) (quoting Derouen v. State, 994 So.2d at 756 (¶20)).

         ¶21. In Gore v. State, 37 So.3d 1178 (Miss. 2010), the defendant was charged with molesting his granddaughter. The court allowed testimony from defendant's children that he molested them when they were minors. Id. at 1184 (¶14). The court reasoned that the defendant's means of accomplishing pedophilic sexual activities on past occasions bore substantial resemblance to each other and with the present offense, which served as proof of motive and a common plan or scheme. Id. at 1187 (¶20). The supreme court agreed, saying that the similarities between prior instances of misconduct and the charged offense undeniably brought the testimony of these other victims within the purview of admissibility under Rule 404(b). Id; see also Green, 89 So.3d at 550 (¶17) (determining that the trial court did not abuse its discretion by allowing four females, who were all related to the defendant charged with gratification of lust with his minor stepdaughter, to testify that he had molested them when they were about the same age).

         ¶22. In Boggs v. State, 188 So.3d 515 (Miss. 2016), testimony of other minors sexually abused by the defendant was allowed to show a common plan or scheme and motive. The minors were all abused at about the same age; two were related to the defendant; he tutored the other. Id. at 521 (¶17). He used his relationship of trust as a family member and caretaker to be alone with them. Id. Two of the minors' testimonies concerning the defendant's conduct at the school library were substantially the same. Id. (¶18). The testimony was admissible to prove Boggs's motive. Id. Moreover, the supreme court found the probative value substantially outweighed the danger of unfair prejudice. Id. at 822 (¶19).

         ¶23. The case of Fisher v. State, 532 So.2d 992 (Miss. 1988), is also applicable. In that case the victim while driving in her car was followed by the defendant who flashed his lights to get her to pull over. He told her she had a taillight out and when she got out of the car, he raped her. The victim definitely identified the rapist. But when news of the incident became public, another woman came forward and was allowed to testify that the same thing happened to her-that the same defendant had used the same ruse to get her to stop, which she did, but she was able to get away before the defendant could assault her. On appeal, the supreme court affirmed the admission of the second victim's testimony to show the defendant's "plan" for assaulting women. Id. at 1000 (¶12).

         ¶24. In Parks v. State, 228 So.3d 853 (Miss. Ct. App. 2017), we found no error in the admission of prior similar assaults on other girlfriends to show Parks's motive, intent and modus operandi. There, two other women testified about the particulars of the physical assaults, which included sexual abuse and how Parks used a knife or other sharp object to threaten or harm his victims. Id. at 869 (¶61).

         ¶25. In this case, the circuit court heard arguments of counsel and Sullivan himself on the admissibility of K.L.'s and R.M.'s testimonies. The court determined that the evidence was relevant under Mississippi Rule of Evidence 401 because of the substantial similarity of the events. The circuit court next acknowledged that the evidence would not be admissible to prove Sullivan's character under Rule 404(b) but that it was admissible to show a common plan or scheme and identity. The court further found that after "considering the nature of the case, the act in this case, the acts in the other two incidents, I believe . . . the evidence is more probative than prejudicial and the probative value substantially outweighs the danger of unfair prejudice to Mr. Sullivan." We agree. Here, the prosecutor clearly presented the alternative purpose of K.L.'s and R.M.'s testimonies, which was to show Sullivan's plan or scheme. As the prosecutor stated, Sullivan sees young girls, may try to talk to them, but ultimately goes after them through a window. Their testimonies were also probative as to the identity of R.L.'s assailant. We find that there was no error in the admission of the testimonies of K.L and R.M as they were entered for an alternative purpose under 404(b), and their probative value outweighed the prejudicial effect to Sullivan. Moreover, the court properly gave the limiting instruction required under Derouen.[3]

         B. Testimony of Moye's attempt to get Thomas to drop charges, thus creating the inference that Sullivan was an accessory to witness tampering.

         ¶26. Prior to trial, Sullivan did not attempt to exclude evidence that Moye attempted to influence Thomas, K.L.'s mother, [4] or the fact that Moye was arrested and charged with witness tampering. Now Sullivan argues that admission of this evidence implied that Sullivan was an accessory to Moye's crime "by his association" with Moye. But the State never mentioned this testimony or its implications in closing, and no jury instruction concerning it was requested. More importantly, at trial, Sullivan did not object when the investigating officer testified that after Thomas reported Moye's behavior Moye was arrested and charged with tampering with a witness. The failure to object to testimony at trial waives any assignment of error on appeal. Ross v. State, 16 So.3d 47, 57 (¶21) (Miss. Ct. App. 2009). Accordingly, we find that Sullivan is procedurally barred from raising this issue for the first time on appeal.

         II. Whether the circuit court erred in allowing hearsay testimony of Brianna Pruitt.

         ¶27. Mark Hogen allegedly overheard Sullivan at a party saying that he (Sullivan) had assaulted R.L. Mark told this to Xiara Thompson, who told Alexia Jordan, who told her cousin, Brianna Pruitt. When she received this information, Pruitt went to the police. Authorities later arranged the photo lineup during which R.L. identified Sullivan as her assailant. Only Pruitt testified at trial.

         ¶28. Hearsay is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. M.R.E. 801(c). Hearsay is inadmissible "except as provided by law." M.R.E. 802. Double hearsay is even more complicated and is incompetent unless each link in the chain fits under some exception to the hearsay rule. Murphy v. State, 453 So.2d 1290, 1294 (Miss. 1984). However, "reversal is required only where abuse of that discretion can be shown to cause prejudice to the defendant." Franklin v. State, 136 So.3d 1021, 1028 (¶22) (Miss. 2014). "When determining whether a statement is prejudicial, th[e] Court has established an objective test asking how a reasonable objective observer would under the circumstances be likely to perceive the statement." Id. at 1029 (¶26) (internal quotation mark omitted).

         ¶29. Even if evidence is admissible under an exception to the hearsay rule, the court must conduct an on-the-record balancing test pursuant to Rule 403 to establish that the probative value outweighs any prejudice to the defendant. Jones v. State, 920 So.2d 465, 475 (¶32) (Miss. 2006). In this sense Rule 403 is the ultimate filter through which all otherwise admissible evidence must pass. Id. Consequently, this rule necessarily vests in the circuit court a certain amount of discretion. Id. (quoting Hart v. State, 637 So.2d 1329, 1336 (Miss. 1994)).

         ¶30. In a motion in limine prior to trial, Sullivan's defense counsel objected to Pruitt's hearsay testimony and the Court sustained the objection in a written order. However, at trial, when the State started questioning Pruitt and the hearsay arose, defense counsel initially objected to the testimony. He then withdrew the objection:

A. My cousin had got in contact with me, and she told me that she had some information, but she didn't want to tell me over the phone; so she told me to meet up with her.
Q. There's some tissue, ma'am, if you need it, in front of you, and when you say your cousin, who's your cousin?
A. Alexia Jordan. So she told us to meet up at the beauty salon. We was at the beauty salon, and she told me that she heard about him getting drunk and saying what he had did like...
[DEFENSE COUNSEL]: Objection, Your Honor. It's hearsay and double hearsay.
THE COURT: All right, let me see the attorneys over here.
(SIDEBAR)
MR. WALLACE: It's a miscommunication on our part. This is a Miscommunication.
. . . .
[STATE]: Are you withdrawing your ...

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