MS Supreme Court 8/26/10

Means v. State.  An interesting decision.  Charles Means pled guilty to possession with intent and was given a 25 year suspended sentence by Judge Helfrich in Forrest County conditioned on Means remaining 100 miles away from the Forrest County Courthouse for the entire 25 years.   Less than four months later, Means was found in Hattiesburg, which is well within 100 miles of the Forrest County Courthouse.   Judge Helfrich didn’t appreciate it, and gave him the full 25 years to serve.  The Supreme Court held that, as it did in Rowland v. State (discussed here https://tobywelchlaw.wordpress.com/2010/07/29/ms-supreme-court-hand-down-72910/) due process claims that affect fundamental constitutional rights are excepted from the procedural bars of the Post Conviction Relief Act.  The Supreme Court felt that the trial court did not set out the proper factors in banishing Means and as such reversed and remanded the case.

Tapper v. State.  Randy Tapper was convicted on two counts of sexual battery and four counts of touching and handling a child for lustful purposes.  He was given two life sentences and another 75 years, all to run consecutively to one another.  He appealed alleging certain errors.

The first error was, “Whether the Trial Court erred in failing to excuse jurors for cause”.  Tapper complained that three jurors said Tapper should have to prove his innocence.  The Judge refused to grant a challenge for cause.  The Jurors stated that they would not abide by Tapper’s constitutional rights, and the Judge refused to strike them for cause.  The Court held that since Tapper used his preemptorary challenges on the three jurors, and he couldn’t prove undesirable jurors were thrust upon him the issue was without merit.

Tapper’s second error was the lack of specificity as to the dates alleged in the indictment.  This is a common problem that defense attorneys run into. Indictments should be specific but prosecutors, especially in sex cases, routinely give wide ranges of dates, that make an alibi defense impossible.  The majority held that the wide range of dates was permissible and thus not an error.  Justice Kitchens in another well written dissent (do you see a pattern?) points out the the U.S. and Mississippi Constitution demand that a Defendant be given all the essential facts of the crime to which he is charged.  The majority held that the State did not have further proof that would have allowed them to narrow the dates, but Justice Kitchens states:

“Yet, the constitutional duty to notify the accused of the charges against him, viathe indictment, rests with the State, as does the burden of proving its case beyond areasonable doubt, and these duties are not relieved simply because the requisite informationis outside the State’s knowledge.”
He goes on to say:
“The indictment’s noninclusion of the distinguishing facts unique to each charge, however slight, limited Tapper’s defense to nothing more than mere denial, and left Tapper to defend himself, not against four distinct criminal acts, but against one criminal act that allegedly occurred four times, with absolutely nothing to distinguish one such occurrence from the other three. Clearly, Tapper’s desire to know the basic facts he was to
face at trial, including where, and approximately when, his accusers claimed they occurred, is not beyond his constitutional right to be informed of the nature and cause of the accusations against him. U.S. Const. amend. VI; Miss. Const. art. 3, § 26.”
I am going to quote the final paragraphs of Justice Kitchens dissent.
Under this Court’s decisions and the rules it has promulgated, defendants in criminal cases are entitled to a mere fraction of the pretrial discovery information that is routinely accorded to litigants in civil cases. Because the criminally accused in Mississippi courts can get no clarification, explanation, or amplification of the charge(s) laid in an indictment by means of a bill of particulars, and comparatively little through discovery, the indictment is
the defendant’s main source of information about the “who, what, when, and where” of the State’s accusations against him or her. See Cumbest v. State, 456 So. 2d 209, 221 (Miss. 1984) (“[A]n accused is not entitled to a bill of particulars on an indictment.”) (citations omitted). The indictment is far more than a mere formality, and a charging document that takes a shotgun approach to accusing a person of the very same conduct, word-for-word, four different times, with nothing to distinguish one charge from the others in terms of details or times, falls fatally short of properly informing the accused of the nature and cause of accusation(s), as mandated by our state and federal constitutions.
¶51. Today’s decision very well could provide a disincentive for those who investigate and prosecute cases of juvenile sex abuse in our state to be diligent in their efforts to ascertain the unique circumstances that will inevitably distinguish repetitious occurrences of the same type of crime by repeat offenders against children who are victimized again and again. It is elementary that nothing ever happens in precisely the same way more than once. Deja vu is always an illusion, never a reality. I join the majority in imploring Mississippi’s prosecutors “to be as specific as possible in drafting indictments, consistent with the provisions of Uniform Rule of Circuit and County Court Practice 7.06, in all cases, but specifically in cases involving allegations of sex offenses committed upon minor children.”
¶52. Counts IV, V, VI, and VII of the indictment should have been quashed for failing to inform Tapper of the nature and cause of the accusations against him in violation of the Sixth Amendment of the United States Constitution and Article 3, Section 26, of the Mississippi Constitution, and because these counts are constitutionally infirm for their clear violation of the former jeopardy provisions of the Fifth Amendment to the United States Constitution and Article 3, Section 22, of the Mississippi Constitution. Accordingly, I would reverse and render Counts IV, V, VI, and VII, but I would affirm the convictions and sentences for all of the remaining counts.
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