Wilson v. State

267 So.3d 264

Alvin C. WILSON a/k/a Alvin Wilson a/k/a Alvin Cornelious Wilson

v.STATE of Mississippi

NO. 2018-KA-00314-SCT

Supreme Court of Mississippi.

April 11, 2019

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

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLINTON, Jackson

BEFORE KITCHENS AND KING, P.JJ., AND COLEMAN, J.

COLEMAN, JUSTICE, FOR THE COURT:

¶1. On August 1, 2016, a grand jury indicted Wilson for sexual battery in violation of Mississippi Code Section 97-3-95(1)(d) (Rev. 2014). The indictment charged Wilson with willfully, unlawfully, and feloniously engaging in sexual penetration with a child under the age of fourteen years old on or about March 1, 2012. The indictment provided that at the time of the sexual battery, Wilson was over the age of eighteen and was twenty-four months older than the victim.

¶2. A Jasper County jury found Wilson guilty of sexual battery as charged. The trial court sentenced Wilson to thirty-five years, with thirty years to be served day for day followed by five years of supervised post release supervision. Wilson appeals, arguing that the trial court erred by (1) admitting into evidence a video recording of his interview with law enforcement and (2) proceeding with his trial and sentencing in absentia . Discerning no error, we affirm Wilson's conviction and sentence.

FACTUAL AND PROCEDURAL HISTORY

¶3. The trial court appointed public defender Rance Ulmer to represent Wilson. On August 22, 2016, Wilson personally appeared before the trial court, waived arraignment, and entered a plea of not guilty. Wilson was released on bond, and the court set trial for February 14, 2017. The trial court ordered that Wilson remain in constant contact with his attorney and keep him advised of changes to his address and phone number.

¶4. On February 9, 2017, Wilson appeared before the trial court and entered a plea of not guilty. The trial court entered an order allowing Wilson to remain out on bond and setting trial for February 7, 2018. The order again required Wilson to remain in constant contact with his attorney and to keep him advised of any change of address and phone number. The order also provided that Wilson's "failure to appear on the aforementioned date may result in [Wilson's] being tried in [his] absence." Wilson signed the order, agreeing to its form and content.

¶5. On February 1, 2018, Wilson filed a petition to plead guilty to statutory rape in violation of Section 97-3-65(1)(b) (Rev. 2014). Wilson was scheduled to appear before the trial court to enter his guilty plea on Monday, February 5, 2018, but Wilson did not appear. After Wilson failed to appear, the sheriff's department attempted to contact Wilson. Likewise, Ulmer attempted to contact Wilson. Ulmer and the sheriff's department were unsuccessful.

¶6. Trial commenced as scheduled on Wednesday, February 7, 2018. The State announced it was ready for trial. The trial court then asked Ulmer whether Wilson was present. Ulmer responded that he had not seen Wilson and moved for a continuance because of his absence. Ulmer explained,

Last Wednesday, which according to my calendar is January 31st, 2018, I met with Mr. Wilson at my office along with his wife. We discussed this case and prepared, went over a guilty plea which he signed, executed, and we filed the next day, February 1st, 2018. He has previously been told of his trial both by verbally and by mail, which is today February 7th, 2018.

Since he was supposed -- he was to appear before this Court Monday, February the 5th, 2018, to enter his guilty plea in Bay Springs at 1 o'clock p.m. He did not show up. After that, my secretary and I made numerous phone calls to two different numbers that I have in my file. One number is disconnected, which is if I recall correctly is the number, his number which it says -- the answering machine disconnected, unavailable, and I forgot the other term that the voice on the phone left. The other number was to his mother, which just said the mailbox was full and hung up. Or no, excuse me, the mailbox had not been set up and hung up.

I tried to contact him after 5 o'clock on Monday and I believe on yesterday. Still to no avail contact him at either number. I do not know if he has had an emergency, but he is not here today and I feel on behalf -- to do my duty, I have to ask the Court for a continuance.

¶7. Ulmer informed the trial court that the last day he had contact with Wilson had been on January 31, 2018. Before the last contact, Ulmer stated that he and Wilson had spoken about his case, including possible defenses. The State offered into evidence the trial court's February 9, 2017, order of arraignment setting the case for trial on February 7, 2018. Ulmer had no objection, and the order was admitted into evidence. The trial court also recalled that the February 7, 2018, trial date had been confirmed at docket call.

¶8. The State called Investigator Chris Thompson of the Jasper County Sheriff's Department to the stand. Investigator Thompson testified that on February 6, 2018, he went to Wilson's address on file. Upon arriving at the address, Thompson spoke to Wilson's mother, who advised Thompson that she had not heard from Wilson in "a couple of days." Wilson's mother provided a phone number to Investigator Thompson. Investigator Thompson called the number on February 6, 2018, and February 7, 2018, the day of trial. Investigator Thompson was unable to contact Wilson with the phone number provided by Wilson's mother.

¶9. The trial court denied the motion for continuance in light of the evidence presented, the arraignment order setting the trial for February 7, 2018, and the confirmation of the trial date at docket call. The trial court recognized Wilson's constitutional right to be present in the courtroom at every stage of his trial, however it noted that the right is subject to waiver. The trial court found that Ulmer had made diligent efforts to contact Wilson. The trial court also found that Ulmer had done everything within his power to have his client present for trial.

¶10. The trial court found that sufficient evidence had been presented showing that Wilson's absence was not due to any intervening cause other than Wilson's own willful and voluntary absence. The trial court found that Wilson's absence was willful and voluntary amounting to a deliberate attempt to avoid trial. As such, the trial court concluded that Wilson had waived his right to be present at trial and ordered that the trial proceed in absentia . Ulmer announced that he was ready for trial, and the trial proceeded.

¶11. At the time of trial, the minor victim Jane¹ was seventeen years old. Jane testified that she was born on October 26, 2000. Jane testified that in 2012, Wilson was her mother's boyfriend and that he lived with Jane and her mother. Jane testified that she had sexual intercourse with Wilson on March 1, 2012. On March 1, 2012, Jane was eleven years old, and Wilson was twenty-two years old. Jane became pregnant and, at the age of twelve years old, gave birth to her daughter Mary² on December 6, 2012. Jane testified that Wilson is Mary's father.

¶12. Investigator Thompson testified that he investigated the alleged sexual battery of Jane. After Wilson waived his Miranda³ rights, Investigator Thompson interviewed Wilson. A video of the interview was played for the jury and entered into evidence.

¶13. Forensic DNA analyst Katherine Rodgers testified as an expert in the field of DNA testing. Rodgers performed a paternity test to determine whether Wilson was Mary's father using DNA samples from Wilson, Jane, and Mary. Rodgers testified that Wilson could not be excluded as the biological father of Mary. Rodgers opined that the probability that Wilson is the father of Mary is 99.999998 percent compared to an untested, unrelated man of the same race. Rodgers prepared a report of her findings, which was admitted into evidence.

¶14. The jury found Wilson guilty of sexual battery in violation of Section 97-3-95(1)(d) as charged in the indictment. The trial court sentenced Wilson to thirty-five years, with thirty years to be served day for day and the remaining five years to be served on supervised post release supervision.

¶15. Following trial, Wilson filed a motion for a judgment notwithstanding the verdict or, alternatively, for a new trial. The trial court denied the motion, and Wilson filed a notice of appeal. On appeal, Wilson raises two assignments of error: (1) whether the trial court erred by admitting a video recording of Wilson's interview with law enforcement into evidence and (2) whether the trial court erred by trying and sentencing Wilson in absentia .

STANDARD OF REVIEW

¶16. The admission or exclusion of evidence is reviewed for an abuse of discretion. Hargett v. State , 62 So.3d 950, 952 (¶ 7) (Miss. 2011). "Unless the [trial court] abuses [its] discretion so as to be prejudicial to the accused, the Court will not reverse this ruling." Shaw v. State , 915 So.2d 442, 445 (¶ 8) (Miss. 2005) (quoting Jefferson v. State , 818 So.2d 1099, 1104 (Miss. 2002) ).

¶17. The decision to grant or deny a motion for a continuance is reviewed for an abuse of discretion. Miles v. State , 249 So.3d 362, 367 (¶ 23) (Miss. 2018). Likewise, the decision to try a felony defendant in absentia is reviewed for an abuse of discretion. Wales v. State , 73 So.3d 1113, 1119–20 (¶¶ 16-18) (Miss. 2011).

DISCUSSION

I. Whether the trial court erred by admitting the video of Wilson's interview with law enforcement .

¶18. Wilson argues that the trial court erred by admitting a video of Wilson's inculpatory interview with law enforcement because no foundation had been established by the State under Mississippi Rule of Evidence 901. Wilson argues that no evidence was presented showing that the video recording was accurate. Wilson also argues that no evidence explained how the recording was made and whether the equipment used...