Osborne v. State

942 So. 2d 193, 2006 WL 399745
CourtCourt of Appeals of Mississippi
DecidedFebruary 21, 2006
Docket2004-KA-00991-COA
StatusPublished
Cited by5 cases

This text of 942 So. 2d 193 (Osborne v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Osborne v. State, 942 So. 2d 193, 2006 WL 399745 (Mich. Ct. App. 2006).

Opinion

942 So.2d 193 (2006)

Joseph Eugene OSBORNE, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2004-KA-00991-COA.

Court of Appeals of Mississippi.

February 21, 2006.
Rehearing Denied August 1, 2006.

*194 James A. Williams, attorney for appellant.

Office of the Attorney General by John R. Henry, attorney for appellee.

EN BANC.

KING, C.J., for the Court.

¶ 1. On April 7, 2004, Joseph Eugene Osborne was convicted by a Lauderdale County Circuit Court jury for the murder of five-year-old Charles Hopkins. Osborne was sentenced to serve a term of life imprisonment in the Mississippi Department of Corrections. Aggrieved, Osborne raises the following issues on appeal which we quote verbatim:

1. Whether Defendant is denied a fair trial, right to confrontation and due process of law when a child is declared competent to testify but the record shows he has been coached and limits his testimony to what he wants to say and the corroborating circumstances are suspect.

2. Whether a defendant is denied a fair trial, fundamental fairness, confrontation of witnesses and due process of law where hearsay of a child is repeated by those adults who heard same, including an expert where there are contradictory accounts of the child's statements and there is substantial evidence of opportunity and motive by the adults for implantation of memory in the child.

3. Whether an expert's testimony that a five-year-old witness is telling the truth supported by the expert's point by point analysis of factors that purportedly show the child's credibility denies a defendant a fair *195 trial, due process of law and confrontation of witnesses by buttressing the child's testimony.

4. [Whether] the court denies defendant a fair trial, due process of law and fundamental fairness when it admits a photograph of life scenes of a young child with his surviving brother that has no relevancy to the issues.

5. Whether defendant is denied effective assistance of counsel when trial counsel failed to object to numerous leading questions propounded to all the State's witnesses, including, for example 37 to the mother who implanted the child witness' memory, fails to contradict witnesses through hearing and trial testimony, fails to examine death mask and confront witnesses on size of hand, fails to acknowledge contradictions on opportunity of memory implantation and on mother's spanking of child, fails to get explanatory instruction on expert testimony and fails to object to vouching by testimonial statement of the prosecutor.

6. Whether the court denies defendant a fair trial, due process of law, and fundamental fairness when it fails to grant a new trial where the evidence is insufficient and may have been the result of bias, prejudice and improper prejudicial evidence.

Finding no error, we affirm.

FACTS

¶ 2. Joseph Eugene Osborne moved in with his girlfriend, Cindy Hopkins (Hopkins), on or about October 23, 2002. Hopkins lived in Meridian, Mississippi with her two sons, Charles Hopkins (Charlie) and Sam Hopkins. When Osborne moved in with Hopkins, Sam was three-years-old and Charlie was five-years-old.

¶ 3. On November 6, 2002, Hopkins suffered from a stomach virus. Osborne gave her some prescription medicine and offered to watch Charlie and Sam. Hopkins fell asleep at two o'clock in the afternoon. At some point in the afternoon, Kimble Frazier, a friend of Osborne, came to Hopkins' house to visit Osborne. Osborne fed Charlie and Sam dinner and later put them to bed in the room the boys shared. Hopkins woke up at about 10:30 p.m. She went into the boys' room and saw that they were asleep. Hopkins then went to the living room and talked to Osborne and Frazier for a couple of hours. She stopped by the boys' room again at about 1:30 a.m. as she and Osborne were headed to their bedroom to go to sleep. Frazier spent the night, sleeping on a day bed in the living room. Frazier testified that he went to sleep about ten or fifteen minutes after Hopkins and Osborne went to bed.

¶ 4. The next morning Hopkins and Sam awoke about 8 a.m. and watched television. At about 10 a.m. the two ate breakfast. Charlie was still in his room and Hopkins testified she thought he was just sleeping late. After eating breakfast, she went to check on him. When she entered the boys' bedroom, she saw Charlie lying face down in bed with her prescription Zyrtec pills strewn about the floor. She jerked the covers off of Charlie and saw that he was blue. Screaming and crying, she took Charlie in her arms. Frazier then awoke Osborne who called 911.

¶ 5. Although there was some bruising on Charlie's body, Hopkins initially believed that Charlie had died from an overdose. The pathologist's report determined that Charlie's cause of death was suffocation. Due to the suspicious nature of Charlie's death, the Meridian Police Department began a homicide investigation. Hopkins, Osborne, Frazier, and Sam were interviewed. Darrell Theall, an investigator *196 assigned to Charlie's case, said that at the time of the interviews no one in particular was a suspect, or in other words, everyone was a suspect. During the investigation the Department of Human Services temporarily placed Sam with one of Hopkins' relatives.

¶ 6. One evening in December 2002, Hopkins, Ellen Riley (Hopkins' sister), and Sam were visiting at Hopkins mother's house. Hopkins and Riley attempted to prepare an unwilling Sam for bedtime. According to Hopkins and Riley, Sam spontaneously said, "Charlie wouldn't go to bed that night either." He proceeded to say that no matter what Osborne tried, Charlie would not go to bed; Osborne even had to chase Charlie to get him back into bed. According to Riley and Hopkins, Riley began asking open ended questions such as "What happened next?" At a pretrial hearing, Riley testified that Sam said that Osborne was mad because Charlie would not go to sleep, but eventually, Osborne made Sam go to sleep. However, Hopkins' testimony revealed a much more detailed account of Sam's revelation. She testified that Sam told them that Osborne spanked Charlie to get him to go to bed and that Osborne placed his hand over Charlie's mouth and "took his breath away."

¶ 7. The next day Hopkins contacted the Meridian Police Department to set up an interview with Sam. However, the forty-five minute interview was not successful. Sam was non-responsive to many of the questions, and did not reveal the details of the story that he told his mother, aunt, and grandmother just the night before. Hopkins and Sam were later referred by an investigator at the Attorney General's office to Dr. Catherine Dixon, the clinical director of the Children's Advocacy Center. During a seven minute taped interview, Sam revealed that he witnessed Osborne kill Charlie and gave a detailed account of the event.

¶ 8. On August 1, 2003, Osborne was indicted by a Lauderdale County grand jury for depraved heart murder. A pretrial hearing was held on December 1, 2003, at which the trial court judge determined that Sam was competent to testify, and that Hopkins, Riley, and Dr. Dixon would be allowed to testify to Sam's hearsay statements. Osborne's trial commenced on April 5, 2004. At the close of the State's case, the defense moved for a directed verdict which was denied. Osborne declined to testify or call witnesses. On April 7, 2004, after six hours of deliberations, the jury returned a verdict finding Osborne guilty of murder.

LAW AND ANALYSIS

I.

¶ 9. Osborne's first assignment of error is that the trial court erred in finding Sam competent to testify.

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Cite This Page — Counsel Stack

Bluebook (online)
942 So. 2d 193, 2006 WL 399745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osborne-v-state-missctapp-2006.