Ben v. State

95 So. 3d 1236, 2012 WL 3601832
Mississippi Supreme Court·Decided August 28, 2012·No. No. 2009-CT-01495-SCT·Published·Cited by 22 cases

Opinions

WALLER, Chief Justice,

for the Court:

¶ 1. Cecil Ben was convicted of rape and sentenced to life imprisonment by the Circuit Court of Leake County. The Court of Appeals affirmed his conviction and sentence. We now do the same.

FACTS AND PROCEDURAL HISTORY

¶ 2. The Court of Appeals set out the facts and procedural history as follows:

On October 3, 2007, at approximately 4:30 a.m., Ben, a bus driver with the Choctaw Transit Authority, picked up a passenger, Monica.[1] Monica was eighteen years old at the time and a student at East Central Community College. Monica lived on Highway 35 outside of Carthage, Mississippi. Monica testified that she was the first passenger on the bus that morning. At one point during the ride, Ben pulled over at the intersection of Highways 35 and 25 in Carthage. Monica testified that Ben then came back to her seat and tried to kiss her. Monica resisted his advances by pushing, kicking, and yelling; but Ben overpowered her. Monica testified that Ben was able to pin her down, while he pulled her pants and underwear down. Monica stated that Ben then inserted his penis into her vagina. Monica stated that after the rape, Ben cleaned himself with paper towels, and then he threw these paper towels out of the bus.
Monica did not notify anyone of the rape until October[] 7, 2007, when she told her best friend, Maurice Hines. Monica testified that she waited until then to notify anyone because she was ashamed and embarrassed. Monica identified Ben in the courtroom as the person who had raped her.
[1241] Hines testified that he spoke with Monica the night of October 7th. Hines testified that he could tell that Monica was upset and urged her to confide in him. Hines testified that Monica then told him that she had been raped by Ben. Monica then informed her mother of the situation, and her mother called the Choctaw Police Department. Officer Timothy Thomas responded to Monica’s home, where he took Monica’s statement and received the clothes Monica had worn at the time of the rape. Officer Thomas then followed Monica to the location of the rape, where Officer Thomas was able to locate the paper towels used by Ben. Monica had informed Officer Thomas that the paper towels were “brown or pink-looking.” Officer Thomas then determined that the rape had occurred in Carthage, so the Carthage Police Department was notified and given the evidence collected thus far. On cross-examination, Officer Thomas testified that in his report, he noted that Monica told him that she had waited to report the crime because she felt ashamed, dirty, and partly responsible. Officer Van Perry of the Carthage Police Department testified that he took possession of the four paper towels and the victim’s clothing. Officer Perry then handed the evidence to Officer Kevin Cross. Officer Perry also told Monica that she needed to undergo a rape test. Sharon Hockett, a registered nurse with the Choctaw Health Department, was called in to perform an exam on Monica. Hockett testified that Monica appeared upset and frightened, but a rape kit was not performed because the rape had occurred over seventy-two hours prior to the exam.
Bill Jones, an analyst with the Mississippi State Crime Laboratory, testified that samples of a paper towel containing seminal fluid and blood samples from Ben and Monica were sent to a private forensic laboratory, Orchid Cellmark, in Texas for further DNA testing. Casey Dupont, the senior forensic scientist at Orchid, performed DNA testing on all three samples. Dupont testified that the stain on the paper towel contained a mixture consistent with the DNA from the blood samples from both Ben and Monica.

Ben v. State, 96 So.3d 9, 12-13 (Miss.Ct. App.2011).

¶ 3. Otis Mingo, a dispatcher/driver for Choctaw Transit, also testified about a sexually inappropriate remark that Ben purportedly had made about Monica two days before the alleged rape occurred.

¶ 4. Ben was convicted of forcible rape and sentenced to life imprisonment. He appealed to this Court, and we assigned his appeal to the Court of Appeals. The Court of Appeals affirmed his conviction and sentence. Id. at 16-17. In his petition for writ of certiorari, Ben argues (1) that his constitutional right to a speedy trial was violated; (2) that Otis Mingo’s testimony was inadmissible due to a discovery violation by the State; (3) that the admission of Maurice Hines’s hearsay testimony was not harmless error; (4) that the admission of Nurse Sharon Hockett’s statement concerning Monica’s veracity was improper; and (5) that the verdict was contrary to the weight and the sufficiency of the evidence. We address each issue below.

DISCUSSION

I. Ben’s constitutional right to a speedy trial was not violated.

¶ 5. After analyzing the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Court of Appeals held that Ben’s con[1242] stitutional right to a speedy trial had not been violated. Id. at 13-15. Ben argues that the Court of Appeals’ analysis was flawed. He asserts that much of the delay in bringing him to trial was attributable to the State’s “inexcusable delay” in submitting DNA evidence for testing. Further, he contends that the Court of Appeals incorrectly found that he was not prejudiced by the failing memories of some potential witnesses.

¶ 6. The Sixth Amendment to the United States Constitution affords an accused “the right to a speedy and public trial....” U.S. Const. amend. VI. That right is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Klopfer v. N. Carolina, 386 U.S. 213, 222-23, 87 S.Ct. 988, 993-94, 18 L.Ed.2d 1 (1967). Article 3, Section 26 of the Mississippi Constitution of 1890 likewise guarantees criminal defendants the right to “a speedy and public trial....” Miss. Const. art. 3, § 26.

¶ 7. In Barker, the Supreme Court set forth four factors to consider whenever a defendant alleges that his constitutional right to a speedy trial has been violated: (1) the length of delay; (2) the reason for the delay; (3) whether the defendant asserted his right; and (4) prejudice to the defendant. Barker, 407 U.S. at 530, 92 S.Ct. 2182. None of these four factors is “a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.” Barker, 407 U.S. at 533, 92 S.Ct. 2182. All, rather, are related and must be considered alongside other relevant circumstances. McBride, 61 So.3d at 142 (citing Barker, 407 U.S. at 533, 92 S.Ct. 2182). Thus, courts must engage in “a difficult and sensitive balancing process.” McBride, 61 So.3d at 142 (citing Barker, 407 U.S. at 533, 92 S.Ct. 2182).

Free access — add to your briefcase to read the full text and ask questions with AI

Ben v. State, 95 So. 3d 1236, 2012 WL 3601832 (Mich. 2012).

95 So. 3d 1236 (Ben v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Joseph Eubanks v. State of Mississippi
Mississippi Supreme Court, 2022
Anthony Giles v. State of Mississippi
Court of Appeals of Mississippi, 2020
Jairus Collins v. State of Mississippi
Court of Appeals of Mississippi, 2017
Jesse Frank Mouton v. State of Mississippi
227 So. 3d 1079 (Mississippi Supreme Court, 2017)
James C. Newell, Jr. v. State of Mississippi
175 So. 3d 1260 (Mississippi Supreme Court, 2015)
Tommy Ames v. State of Mississippi
191 So. 3d 746 (Court of Appeals of Mississippi, 2015)
James Douglas McKnight v. State of Mississippi
187 So. 3d 635 (Court of Appeals of Mississippi, 2015)
Markeith D. Fleming v. State of Mississippi
179 So. 3d 1160 (Court of Appeals of Mississippi, 2015)
Myers v. State
145 So. 3d 1143 (Mississippi Supreme Court, 2014)
Hardy v. State
137 So. 3d 289 (Mississippi Supreme Court, 2014)
Ford v. State
139 So. 3d 730 (Court of Appeals of Mississippi, 2013)
Magee v. State
124 So. 3d 64 (Mississippi Supreme Court, 2013)
Shaw v. State
139 So. 3d 79 (Court of Appeals of Mississippi, 2013)
Weeks v. State
123 So. 3d 373 (Mississippi Supreme Court, 2013)
Pearson v. State
115 So. 3d 148 (Court of Appeals of Mississippi, 2013)
Galloway v. State
122 So. 3d 614 (Mississippi Supreme Court, 2013)
Burdette v. State
110 So. 3d 296 (Mississippi Supreme Court, 2013)
Brad Hardy v. State of Mississippi
Mississippi Supreme Court, 2012
Malcolm Clifton Weeks v. State of Mississippi
Mississippi Supreme Court, 2012